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UNIVERSITY  Of^ 
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SAN  DIEGO 


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CONSTITUTIONAL  STUDIES, 

STATE   AND   FEDERAL. 


WORKS  OF  PEOP.  SOHOULEE, 


A  HISTORY  OF  THE  UNITED  STATES  UNDER 
THE  CONSTITUTION.  5  vols.,  8vo.  Cloth. 
$11.25. 

THOMAS  JEFFERSON.     12mo.    Cloth.    .^l.OO. 

HISTORICAL  BRIEFS,  WITH  BIOGRAPHY.  8vo. 
Cloth.     $2.00. 

CONSTITUTIONAL  STUDIES,  STATE  AND  FED- 
ERAL.    8vo.     Clotli.     S1.50. 


DODD,    MEAD    AND    COMPANY, 
Publishers. 


CONSTITUTIONAL  STUDIES, 


STATE  AND  FEDERAL. 


BY 


JAMES  SCHOULER,  LL.D., 

PROFESSOR   OF    LAW,    AND    AITTIIOR   OF    "HISTORY    OF  THE    UNITED 
STATK3    UNDER   THE    CONSTITUTION." 


NKW    YDIUv: 
DODD,  MKAI)   AND   COMPANY. 

1S07. 


Copyright,  1S97, 
By  James  Schouler. 


University  Press: 
John  Wilson  and  Son,  Cambkidgk,  U.S.A. 


PREFACE. 


This  volume  contains  the  substance  of  lectures 
delivered  Ijcforc  the  graduate  students  of  Johns 
Hopkins  University  during  the  years  1893-1896. 
The  author,  pursuing  his  own  investigation  of  the 
primary  documents,  has  sought  to  trace  tlie  origin 
and  progress  of  those  political  ideas  which  have  be- 
come dominant  and  fundamental  in  American  gov- 
ernment. His  order  of  study  embraces :  (1)  Early 
colonial  charters  and  the  constitutions  of  the  old 
thirteen  States ;  (2)  documents  of  Union,  whose  full 
fruition  is  the  Constitution  of  the  United  States ; 
(3)  State  constitutions  since  the  adoption  of  this  full 
Federal  system.  Such  a  study  brings  many  important 
facts  into  new  relief  which  pertain  to  American  de- 
mocracy and  its  progression,'  and  should  be  found 
both  interesting  and  suggestive.  Even  in  the  more 
trite  and  familiar  analysis  of  our  Federal  Constitution, 
the  author  has  sought  to  impart  some  freshness  of 
treatment  by  employing  historical  illustration  drawn 
from  the  national  experience  of  a  century. 

J.  S. 

Adoust  10,  1897. 

•  See,  *".  7-,  M  to  mpthods  of  conntitutional  adoption,  p.  21 1  rf  seq.  ; 
oral  voting  and  the  hullot,  p.  231  e<  $€q. 


CONTENTS. 


PAKT  I. 
EARLY  CHARTERS  AisD  CONSTITUTIONS. 


Page 

Introductory  1 

Modern  American  Institutions. —  The  Coinniou  or  Consue- 
tudinary Law.  —  Legislative  Enactment. —  Fuiidaiueutal 
Charter  or  State  Constitution.  — Federal  Constitution  and 
Pursuant  Acts  of  Congress  and  Treaties. 

II. 

The  Colonial  Governments.     1607-1776 9 

Tliirtecn  Colonies  cl;u<sitied.  —  Early  Fundamental  Charters. 

—  Tlieso  Charters  studied.  —  Structure  of  Colonial  (jovcrn- 
ment. —  Allegiance,  Civil  Rights,  and  Inter-Colonial  Kights. 

—  Religious  Toleration.  —  Trade  and  Busiuess.  —  Land 
Tenure. 

III. 

Revolutionary  Bills  ov  Rights.     1776-1783      .     .     .     20 

Bills  or  Declarations  of  Kights.  —  Virginia,  Pennsylvania, 
and  Marylan<l  in  1776.  —  Other  Hills  of  Rights  and  their 
Idea<i.  —  Kuligious  Features  noticed. 

IV. 

K.VRLY  State  Constitutions.     1776-1789 45 

Montesquieu  Structure  of  Government.  —  Conventions  with 
Plenary  Power.  —  Eloctivo  Franrhiso. —  T>egislature,  Execu- 
tive ami  Judiciary.  —  Miscellaneous  Provisions. 


viii  CONTENTS, 

PART   II. 
THE  FEDERAL  UNION. 

I. 

Pagb 

Early  Tendencies  to  Union.     1609-1764 70 

E  Pluribus  Umim.  —  New  England  Confederacy.  —  Colonial 
Boards  of  Commissioners.  —  Albany  Convention  of  1754 
and  Fraulilin's  Plan  of  Union. 

n. 

Independence  and  Revolution.     1765-1780    ....     79 

Stamp  Act  Congress  of  1765.  —  Continental  Congress  (1774) 
and  Resistance.  —  Declaration  of  Independence.  —  Conti- 
nuity of  Union  in  these  States. 

III. 

Articles  of  Confederation.     1781-1789 84 

Revolutionary  Government  (1776-1780).  —  Adoption  of  Arti- 
cles (1781).  —  Nature  and  Incomplete  Scope  of  Confederacy. 
—  Congress  and  its  Authority.  —  Delegated  Power  from 
States. 

IV. 

The  Federal  Constitution;  its  Nature  and  Estab- 
lishment.    1787-1789 93 

Fatal  Defects  of  Old  Confederacy.  — Convention  of  1787  and 
New  Plan  of  Union.  —  New  Government  operating  upon 
the  People. 

V. 

Federal  Constitution    Analyzed;    Structure    and 

Distribution  of  Powers;  Legislature      ...     99 
Nature  of  Federal  Government  as  to  States. —  Pules  of  Inter- 
pretation.—  Preamble   and   Purpose.  —  Congress  and  its 
Structure.  —  Course  of  Legislation. 


CONTENTS.  ix 

VI. 

Page 
Federal    Constitution     Analyzed;    Fundamental 

poweks  ok  conguess 115 

Fundameutal  Powers  and  Prohibitious,  State  aud  Federal. 

—  Power  to  Tax.  —  To  Borrow  Money.  —  To  Kegulate 
Commerce. —  Naturalization  aud  Bankruptcies.  —  Power 
to  Coin  Money,  aud  Regulate,  etc.  —  Post-Offices  aud  I'ost- 
Koads.  —  I'atcnts  and  Co])yrights.  —  Federal  Crituiual 
Offences.  —  War  aud  Peace  Power.  —  Armies  and  Navies. 

—  Calling  forth  the  ililitia. — Federal  Capital  aud  Sites 
reserved. 


VII. 

Federal    Constitution    Analyzed;    Federal    and 

State  Prouibitions 148 

Express  Prohibitions  upon  Congress  aud  tlie  United  States. 
—  Express  Prohibitions  upou  States,  together  with  the 
United  States.  —  Unqualified  Prohibitions  upou  States.  — 
State  Prohibitions  unless  Congress  asseuts.  —  Implied 
Prohibitious. 


VIII. 

Federal  Constitution  Analyzed;  The  Executive       156 

Chief  Federal  Executive  newly  created.  —  President  and 
Vice-President.  —  How  Chosen. — Term  and  Qualifica- 
tions. —  Powers  and  Duties,  Domestic  and  Foreign.  — 
Conclusion. 


IX. 

Federal  Constitution  Analyzed;  The  Judiciaky  .     169 

Former  Judicial  Kstablishment  Indi.^tinct.  —  Independence 
of  Present  .Judiciary,  and  Permanence  of  Siijircnio  Court. 
—  Tenure,  Recom|)enso,  etc. — Functions  exercised  and 
.lurisdictiim.  —  Questions  <tf  Constitutional  Conflict.  — 
Sujiremo  L.iw  of  Liuid.  — .Jury  Tri.ii  for  Crime.  —  Trea.son 
and  Attainder. —  Federal  Crimes  defined. 


X  CONTENTS. 

X. 

Page 
Federal  Constitution  Analyzed  ;  Interstate  and 

Territorial  Relations 178 

Full  Faith  and  Credit  between  States.  —  rrivileges  aud  Iin- 
rauuities.  —  Mutual  Extraditiou.  — Aunexations  to  Uuiou. 
—  Foreign  Acquisitions.  —  Regulation  of  Domestic  Terri- 
tory.—  Guaranty  of  Ke])uhlicau  Government.  —  rrotec- 
tiou  against  Invasion  or  Domestic  Violence. 

XI. 

Federal  Constitution  Analyzed  ;   Adoption,  Power 

to  Amend,  and  Federal  Supremacy  .     .     .     .     185 

No  Direct  Reference  to  People.  —  IModes  of  Future  Amend- 
ment.—  Confederation  Debts  Binding. — Supreme  Law 
,     of  Land.  — Federal  Oatii.  —  No  Religious  Test  of  Office. 

XII. 

Federal     Constitution     Analyzed  ;       Subsequent 

Amendments 190 

Fifteen  Amendments  since  1 787.  —  Ten  as  a  "  Bill  of  Rights  " 
Addition  proposed  in  1789.  —  Eleventh  restraining  Judi- 
cial Power  against  States.  —  Twelfth  relating  to  Presi- 
dential Elections.  —  Three  Civil  War  Amendments. 


PART   III. 
STATE   CONSTITUTIONS  SINCE  1789. 


Historical  Sequence 203 

Influence  of  Federal  Constitution  upon  States.  —  The  Present 
Union.  — Era  of  Federalism  (1789-1801).  —  Republican 
Era  (1801-181,')).  — Era  of  Peaceful  Development  (1816- 
1835).  —  Era  of  Strife  (1836-1861 ).—  Civil  War  aud  Re- 
construction (18C1-1877).  — New  Era  (1877-1897). 


CONTENTS.  xi 

II. 

Page 
Methods  ok  Fundamental  Adoption  and  Change  .     211 

Popular  liefeieuce  of  Couvcutiuu  Work.  —  Later  Coustitu- 
tious,  How  Adopted.  —  Coustitutioual  Ameuduieuts.  — 
Modern  Coustitutiou  cuucted  at  the  Polk. 


III. 

State  Fundamental  Maxims 220 

"Bills  of  liights"  siuec  1789.  —  Maxims  of  Political  and 
Peiional  Liberty.  —  No  Iiupri.souineut  lor  Debt.  —  Exeinp- 
tioiib  fruiii  Lxecutiou,  etc.  —  Womau'a  liights.  —  Educa- 
tiou  aud  Keligiuu. 

IV. 

The  Elective  Fkancuise 231 

Federal  Dcfereuce  to  States.  —  Voting  Qualifications.  — 
Ballot   aud    viva   voce   Mode.  —  liegistratinn,   Kesideuce. 

—  Other  I'rovisions.  —  Negro  Suffrage  I'rohleui.  —  I'lu- 
rality  Poll  and  Miuority  Keprc.-ientation.  —  Race  and  Sex 
Kestrictious,  etc.  —  Increased  Power  of  Choice. 

V. 

The  Legislature 249 

Modern  Legi.-^lature  Uicanieral.  —  Senate  and  House.  — 
Distrustful  Provisions.  —  Modern  Organization  aud  Modes 
of  Business.  —  Fundamental  Kcstraints  upon  Legislation. 

—  Latest  Reforms.  —  Public  Supervision. 

VI. 

The  1C.\ecutive 267 

lucretuted  Dignity  of  State  Governor.  —  Dependence  upon 
People  rather  than  the  rycgislatnrc.  —  Modes  of  Choice, 
Term,  and  Qualificitions.  —  Council,  Lieutenant-Gov- 
ernor.—  lV)wi>r  to  I'ardon,  N'^cto,  and  Appoint. — Chief 
Suhordinatos  of  State.  —  Failure  of  Early  Expedients. — 
Popular  Control  lucreasiug. 


xii  CONTENTS. 

vn. 

•  Pagb 

TuE  Judiciary 283 

State  Judicial  Establishments.  —  Modern  Tenure  for  Years 
with  roj)ular  Choice.  —  Other  Constitutional  Provisions. 

—  Court  Uthcers.  —  Constitutional  Interpretation  by  Judi- 
ciary. —  Conservators  of  Organic  Law. 

VIII. 

Miscellaneous  ;  Conclusion 296 

Impeachment  and  its  Substitutes.  —  Modern  Qualificatiuns 
for  Office,  etc.  —  State  Capitals,  and  their  Location. — 
Commissions.  —  Education  and  Philanthropy.  —  Muni- 
cipal Government.  —  Growth  of  the  Popular  Referendum. 

—  Anglo-Saxon  Temperament  prevails.  —  Federal  and 
State  Constitutions  compared.  —  Strength  of  American 
Democracy. 


Constitution  of  the  United  States 309 

Index 327 


CONSTITUTIONAL   STUDIES. 


PART   I. 
EARLY  CHARTERS   AND  CONSTITUTIONS. 

I. 

INTRODUCTORY. 

If  we  examine  the  Revised  Statutes  of  any  well- 
ordered  coninionwealth,  —  a  work  prepared  and  pul> 
lished  under  authority  of  the  legislature  as  the  full 
and  systematized  expression  of  written  law  at  a  given 
date,  —  we  shall  find  printed  there  the  State  constitu- 
tion, followed  or  preceded  by  the  great  mass  of  gen- 
eral enactments  condensed  and  arranged  by  titles  and 
chaptera.  And  the  same  may  be  said  coiTespondingly 
of  the  Revised  Statutes  of  our  Federal  Union.  In 
such  a  Imge  bound  volume,  which  exhibits  only  what 
still  remains  enforceable  in  the  community  a.s  a  code, 
we  perceive  that  the  constitution  occupies  but  a  few 
pages  comparatively,  while  perhaps  nineteen-twen- 
tieths  of  the  whole  ])ulk  comjjrise  public  statutes,  the 
periodical  elllux  of  legislation.  Here  and  thens  per- 
haps, if  tlie  codifying  work  be  scholarly,  we  shall  lind 
citiitions  from  the  judicial  repoits,  indicating  that  this 
vast  array  of  mandatory  t<'xt  hits  received  from  time 
to  time  the  comment  and  construction  of  the  courts 
as  to  its  fundanientid  force  and  meaning. 

Sovereign  precepts  are  in  these  modern  days  pul)- 
licly   set    foith ;  and    from    .such    an   open   book   we 

1 


2  CONSTITUTIONAL  STUDIES. 

gather  in  detail  the  institutions  of  a  modern  Ameri- 
can State,  so  far  as  the  people's  organic  text,  supple- 
mented and  expanded  by  the  variable  bat  consistent 
enactments  of  popular  representatives  in  the  legisla- 
ture from  time  to  time,  may  display  them  at  a  certain 
epoch.  To  the  former,  and  more  constant  as  well  as 
more  comprehensive  class  of  written  institutions  in 
America,  this  volume  will  confine  itself. 

Charters  and  constitutions,  the  framework  and 
fundamental  expression  of  American  goverimient, 
whether  in  a  State  or  Federal  sense,  furnish,  in  fact, 
the  primary  ideas  of  our  political  system,  the  organic 
institutions  to  which  legislation,  and,  indeed,  the 
whole  practical  conduct  of  public  affairs,  must  be 
purely  subsidiary,  like  water  conducted  through  some 
prearranged  channel.  Every  statute,  every  act  of  the 
legislature,  must  conform  to  the  basic  mould  of  our 
local  constitution,  else  the  judiciary,  when  invoked, 
will  check  its  operation.  Not  that  American  consti- 
tutions and  legislative  acts  progress  historically  to- 
gether and  change  together,  but  that  the  constitution 
of  any  given  date  acquires  supremacy,  and  each  con- 
stitutional change  is  radical.  Herein  consists  the 
great  difference  between  constitutional  government 
in  the  mother  country  and  our  own.  In  Great  Brit- 
ain the  struggle  of  centuries  has  been  between  King 
and  Parliament,  the  predominance  of  executive  or 
legislature ;  in  tlie  United  States  of  to-day,  public 
authority^  whether  of  executive  or  legislature  or 
judiciary,  is  but  representative  in  theoiy,  an  autliority 
of  co-ordinate  departments,  and  tlie  people  alone  are 
sovereign  and  predominant.  Thus,  men  learned  in 
British  law  assert  to-day  that  Parliament  has  at 
length  triumphed,  by  virtue  of  a  representative  pop- 
ular authority  irrevocable ;  and  that  throughout  the 
realm  of  Great  Britain  no  fundamental  limit  can  be 


INTRODUCTORY.  3 

set  to  whatever  Pailiiiment  may  choose  at  any  time 
to  ordain.  Settlers  from  the  old  country,  at  an  age 
when  the  old  struggle  for  royal  prerogative  merged 
into  civil  war,  regicide,  and  the  protectoi-ate  of  Crom- 
well, our  early  American  colonists  ripened  in  the 
belief  that  there  existed,  even  in  the  parent  country, 
an  English  constitutional  law,  a  "  law  of  the  land  " 
for  the  people,  wliich  such  documents  as  magna 
charta  had  formulated  for  individual  protection  in 
life,  liberty,  and  property,  and  which  neither  a  mon- 
arch nor  Parliament  could  rightfully  transgress. 
Such  views  had  been  upheld  at  home  by  the  sturdy 
Coke,  that  Gamaliel  of  our  pre-Revolutionary  law- 
yers. For  America,  for  these  United  States,  at  all 
events,  no  law,  no  system,  can,  since  1776,  be  deemed 
obligatoiy  in  a  connnonwealth  Init  what  originates  in 
convention  with  the  popular  sanction ;  and  upon  the 
solid  pillars  of  such  law,  such  a  system,  rests  the 
whole  fabric  of  sovereignty.  A  written  constitution, 
therefore,  wliethcr  rigid  or  elastic  in  expression,  de- 
termines and  defines  the  scope  of  all  departments 
of  government,  of  all  government.  That  idea  sprang 
from  the  primitive  condition  of  American  settle- 
ments, which  was  settlement  under  the  constraints 
of  a  written  chailer. 

It  is  fit,  tlicn,  that  those  written  institutions  should 
be  studied  and  undei"stood  whicli  are  at  the  very 
base  of  American  life  and  manners.  But  equally 
basic,  by  prosuin])tion,  at  least,  in  the  spread  of 
tlie  Anglo-Saxon  race,  is  that  accretion  of  customs, 
shrouded  as  to  origin  in  tlu*  darkness  of  the  middle 
ages,  wliich  Rlackstoiic  jiroriouncos  "  tlie  first  ground 
and  chief  corner-stone  of  the  laws  of  England." ' 
Tliis  English  common  law  was  brought  from  Great 
>  Bl.  Com.  73. 


4  CONSTITUTIONAL  STUDIES. 

Britain  to  America,  and  propagated  by  our  early  col- 
onists wherever  their  settlements  extended.  Some 
famous  men  of  our  Revolutionary  era  contended  that 
such  consuetudinary  law  existed  in  these  colonies 
only  by  force  of  early  colonial  legislation  which  ex- 
pressly recognized  its  operation ;  others,  with  perhaps 
the  better  reason,  that  as  originally  liege  subjects  of 
Great  Britain  we  brought  that  law  to  the  new  world, 
subject  only  to  such  express  changes  as  might  after- 
wards be  found  needful  for  adapting  it  to  our  new 
condition.^  But  all  have  agreed  that  by  the  time 
independence  of  Great  Britain  was  declared  in  1776, 
the  English  common  law,  with  some  such  local 
variance  and  adaptation,  had  overspread  the  surface 
of  American  society,  for  the  presumptive  regulation 
of  private  rights  ;  and  one  great  patriot,  at  least,  is 
said  to  have  declared  that  he  would  never  have  drawn 
sword  against  King  George  had  he  not  believed  that 
the  common  law  still  remained  his  birthriglit.^ 

Hence  originates  case-law,  as  it  is  termed,  which,  in 
its  mighty  accumulation  of  judicial  precedents  his- 
torically preserved  for  reference  through  the  authentic 
reports  of  England  and  America,  constitutes  the  first 
layer,  so  to  speak,  of  our  common  State  and  Fed- 
eral jurisprudence.  Unwritten  law,  it  was  formerly 
termed,  as  distinguished  from  the  written  law  of 
positive  enactment,  which  we  first  discussed,  — 
unenacted,  we  should  rather  term  it  to-day,  since  in 
modern  times  reports  of  the  appellate  courts  are 
nearly  as  accessible  and  as  widely  printed  and  circu- 
lated as  statutes  or  the  organic  constitution  itself. 
Modern  reports  are  not,  strictly  speaking,  the  tech- 
nical transcripts  of  court  records ;  but  prepared  in  a 
more   readable  shape,  they  supply,  by  way  of  narra- 

1  And  see  the  lantrua^c  of  coloniiil  cliarters  on  this  point,  II.  post. 

2  A  remark  altiiliuted  to  John  Adams. 


INTRODUCTORY.  5 

tive,  a  summary  of  the  facts,  in  each  decided  case 
(which  narration  is  often  the  court's  own  statement 
in  tlie  opinion  rendered),  together  with  a  judicial 
opinion  at  full  length  disclosing  the  grounds  upon 
which  the  decision  was  rendered.  Leges  et  consuetu- 
dines  regni  was  the  accepted  title  of  the  English  com- 
mon law  in  early  times.  No  body  of  law  can  have 
developed  so  easily  and  so  smoothly  ius  that  founded 
upon  the  customs  of  a  homogeneous  people  by  the 
gradual  accretion  of  precedents.  Customs  make 
manners  and  shape  mannei-s.  Custom  or  usage,  in 
business  or  the  household,  for  determining  private 
rights  and  wrongs,  precedes  usually  the  law,  though 
fundamenti\l  maxims  were  earlier ;  a  test  case  in  the 
courts  determines  the  full  scope  and  legality  of  such 
usage ;  and  the  precedent  as  recorded  and  published 
gives  force  and  expansion  to  the  custom,  or  else  de- 
nies it  on  consideration  of  sound  policy.  Legislation, 
to  be  sure,  may  inteipose  with  moie  violence  and 
radical  effect  to  change  that  custom,  and  with  it  the 
existing  course  of  judicial  precedents  or  procedure  ; 
but,  whether  it  ])e  under  court  or  legislative  direc- 
tion, innovation  or  its  suggestion  must  liave  begun 
usually  in  the  ingenuity  of  society,  fcoling  its  own 
way  f)V('i'  the  surface  of  human  existence  and  among 
the  pitfalls  of  public  sovereignty,  towards  some  new 
combination  of  circumstances  where  former  analogies 
are  to  bo  aj)plicd.  And  thus  do  judicial  precedents, 
which,  l)y  their  sequence,  confirm  principles  in  the 
coni'se  of  an  extended  and  novel  application,  come 
to  supply  society  with  a  jurisj)rudencc  so  wise,  so 
tolerable,  and  so  methodically  progressive,  that  we  of 
England  and  the  United  States  may  well  wonder 
how  civilized  nations,  professing  popular  institutions, 
couhl  ever  have  got  on  well  withont  them.  Scholars 
have  asserted   that  there  was  more  of  the  a  2}riori 


6  CONSTITUTIONAL  STUDIES. 

assertion  of  law  in  the  Roman  methods  of  Justinian's 
age ;  but,  be  that  as  it  may,  our  Angio-Saxon  system 
prevails  readily  in  modern  application.  Foreign  jur- 
ists tell  us  that  in  colonies  such  as  Canada,  which 
have  come  from  other  nations  under  English  influence 
and  authority,  the  English  system  of  reporting  judi- 
cial cases  and  of  developing  the  law  from  such  re- 
ports has  come  into  easy  predominance.  So  is  it,  we 
might  add,  with  Louisiana,  Florida,  Texas,  and  those 
other  annexations  to  the  United  States  where  the 
law  of  continental  France  or  Spain  once  shaped  the 
rights  of  society. 

Precedents,  like  cobble-stones,  pave  the  pathway  of 
our  common  law,  and  that  pathway  stretches  far  back 
into  time  immemorial.  So  natural  is  the  habit  of 
relying  upon  precedents  for  smoothing  out  consist- 
ently the  broadening  avenue  of  human  achievement 
that  we  find  them,  not  for  judicial  development  alone, 
but  in  ceremonial  observances,  in  holiday  celebrations 
and  memorials,  whether  as  concerning  the  State,  the 
community  of  neighbors,  or  the  family  circle.  Prece- 
dents take  strong  lodgment  in  the  simplest  mind; 
and  the  simpler  the  people,  the  more  conclusive,  as 
well  as  irrational,  becomes  their  expression.  Sir 
Frederick  Pollock,  in  one  of  his  essays  on  jurispru- 
dence, observes  how  readily  a  young  child  will  cite 
precedents  to  justify  conduct  for  which  he  is  yet 
unable  to  allege  a  sound  motive.  "  Why,  father  (or 
A)  did  so,"  is  his  excuse ;  or,  if  pushed  still  more 
closely  for  a  plea,  "  I  did  so  yesterday,  and  you  let 
me."  Tribes  and  families  living  remote  from  civi- 
lized society  pursue  their  peculiar  customs,  because 
such  was  the  tribal  or  parental  custom  before  ;  as  we 
see  in  tlie  quaint  dress  or  festivities  which  keep  up 
old  manners.  With  some  simple  village  peasantry 
who  have  seen  little  of  the  enlightened  world,  novel- 


INTRODUCTORY.  7 

ties  find  little  favor ;  such  folk  are  content  to  bake 
and  brew  and  to  pursue  their  sports  as  the  genera- 
tions did  before  them.  Precedents  thus  relied  upon 
are  of  course  not  conclusively  just  and  reasonable. 
Hut  those  precedents  which  in  our  own  mosaic-work 
of  the  common  law  become  esUiblished  by  the  judg- 
ment of  some  intelligent  tribunal,  learned  in  what 
has  been  judieiall}'  established  already,  and  skilful  to 
ap[)l3',  —  of  a  tribunal  fairly  and  honestly  disposed  to 
do  justice  according  to  the  merits  of  each  case,  and 
composed  of  men  selected  for  their  superior  legal 
wisdom  and  aptitude,  who  hear  the  arguments  of  both 
sides  before  deciding,  and  who  have  power  to  enforce 
the  decision,  —  ought  surely  to  carry  the  greatest 
weight  as  authority  for  a  custom  in  any  specified 
jurisdiction. 

Of  public  institutions,  therefore,  in  an  American 
modern  State,  any  comprehensive  study  must  take  a 
threefold  range  :  (1)  There  is  tiie  common  or  consue- 
tudinary law  as  the  fii-st  stratum,  that  most  particu- 
larly whicli  prevailed  at  the  original  colonization  of 
this  country ;  (2)  There  is  the  legislative  enactment 
or  positive  statute  which  disi)laces  such  conmion  law, 
regulating  and  modifying  so  far  as  may  be;  (3)  Theie 
is  tijo  further  written  fundamenUil  SUite  constitution, 
primitive  enough  in  charter  origin  to  control  com- 
mon law  at  the  colonial  outset,  which  "  as  the  act  of 
the  people  si)eaking  in  their  original  character "  ^ 
overrules  and  superecdcs  whatever  in  eitlier  custom 
or  contemporaneous  statute  law  proves  inconsistent 
with  its  mandate,  giving  to  local  government  and 
society  a  new  progression.  To  this  may  Ix}  added  (4) 
that  the  constitution  of  the  riiited  Stat<'s  ajid  the 
acts  and  statutes  of  Congress  and   treaties  pursuant 

»   1  l\.iit  ('..in.  W'i. 


8  CONSTITUTIONAL  STCfDIES. 

thereto  are  the  supreme  law  of  this  hmd,  and  para- 
mount in  authority  to  custom,  State  statutes,  or  even 
the  State  constitution  itself.  American  institutions, 
both  State  and  Federal,  we  now  proceed  to  examine 
in  their  consecutive  order  so  as  to  trace  out  American 
ideas  of  government  in  their  historical  origin  and 
development,  as  embodied  in  these  third  and  fourth 
classes  only  of  fundamental  law.  It  should  be  ob- 
served, however,  in  passing,  that  many  of  those  ideas 
which  State  constitutions  usually  put  forward  to-day 
as  fundamental  have  in  certain  other  States,  whose 
organic  law  comprises  less  detail,  Avorked  into  practi- 
cal expression  as  the  less  positive  fiat  of  a  State  legis- 
lature, exercising  its  own  unfettered  discretion  over 
the  subject. 


II. 

THE  COLONIAL   GOVERNMENTS. 

1607-1776. 

Blackstone  has  classified  the  governments  of  our 
American  colonics  as  follows :  (1)  Provincial  ;  (2) 
Proprietary';  (3)  Charter  Governments-^  Such  was 
doubtless  their  condition  when  he  published  liis 
Commentaiics,  or  shortly  before  the  Revolution. 
Seven  of  these  colonics,  and  in  fact  the  majorit}^  were 
of  the  first  or  Provincial  class, —  New  Hampsliire,  New 
York,  New  Jersey,  Virginia,  North  Carolina,  Soutli 
Carolina,  and  Georgia  ;  that  is  to  say,  in  each  of  them 
a  royal  governor  who  was  appointed  by  the  British 
Crown  served  as  royal  deputy  within  the  jurisdiction, 
under  instnictions  which  usually  accompanied  or  fol- 
lowed his  commission.  Of  Propriet<ary  governments 
there  were  Maryland,  Pennsylvania,  and  Delaware ; 
and  Ikmc  some  favored  individual  or  family  —  that  of 
r.ord  Baltimoic,  in  the  first  named,  and  of  William 
Ptnn  in  tin;  othor  two — ruled  with  sub-royal 
(huninion  and  subordinate  powers  of  legislation. 
The  Charter  govern nicnls  proper  comprised  at  tliis 
late  period  only  Massachusetts,  Connecticut,  and 
Rhode  Island. 

Historically  speaking,  however,  most  of  these  thir- 
teen American  colonies  had  been  originally  settled 
and  established  under  a  fnndamontal  charter  or  grant 
of  some  sort  from  the  British  Crown,  which  served  as 

>  1  Bl.  Com.  10«;  1  Story  Commontarios,  §  159. 


10  CONSTITUTIONAL  STUDIES. 

a  parchment  basis  of  government ;  most  of  their  in- 
habitants had  become  habituated  to  a  written  funda- 
mental polity  to  which  all  local  legislation  had  to 
conform,  very  much  as  in  the  by-laws  of  a  chartered 
business  corporation  of  to-day ;  nor  did  the  primitive 
government  in  such  cases  differ  very  greatly  from 
that  of  our  modern  private  coi-poration  in  committing 
the  main  general  management  of  affairs  to  a  President 
or  Governor  with  a  Board  of  Directors  or  Assistants, 
all  of  whom,  under  the  most  favoring  circumstances, 
were  chosen  by  the  body  of  freemen  or  stockholders. 
In  fact,  the  complaint  against  the  Winthrops  and  Dud- 
leys of  Massachusetts  Bay  and  their  followers  had 
been  that  what  the  Crown  originally  intended  as  a 
mere  civil  corporation  within  the  realm  had  been  per- 
verted across  the  ocean  by  the  corporators  into  a  full 
political  establishment.  Proprietary  governments, 
moreover,  were  conducted  by  virtue  of  royal  grants 
or  charters.  During  the  eighteenth  century  and  for 
a  long  time  prior  to  1775,  we  find  only  Connecticut 
and  llhode  Island  possessed  of  charters  which  con- 
ferred a  liberal  autliority  upon  the  people,  while 
Massachusetts  lived  under  a  royal  charter  which 
made  its  government  scarcely  less  in  practice  of  the 
provincial  sort  than  that  of  Virginia.  '■  Both  Virginia 
and  Massachusetts  luid,  in  fact,  experienced  various 
charter  vicissitudes  since  their  earliest  settlement; 
and  the  Massachusetts  charter  from  William  and 
Mary,  dated  1691,  was  reserved  and  cautious  in  its 
allowance  of  self-government.  .On  the  other  hand, 
the  charters  of  Connecticut  and  Rhode  Island  from 
Charles  II.  —  the  one  granted  in  1662  and  the  other 
in  1663  —  were  so  manifestly  liberal  in  popular  privi- 
leges that  each  served  essentially  through  the  Revo- 
lution and  even  beyond  the  eighteenth  century  as 
the  fundamental  constitution  of  an  American  State, 


THE   COLONIAL    GOVERNMENTS.  11 

though  not  democratic  enough  to  stand  long  the  pop- 
ular test  of  this  nineteenth  centuiy. 

These  early  American  chartera  afford  a  curious  and 
interesting  study.  In  the  earliest  of  them  we  shall 
find  ideas  and  expressions  which  have  immensely 
influenced  the  development  of  manners  and  politics 
in  this  new  world,  not  through  the  colonial  era  alone, 
but  for  all  time.  The  idiosyncrasies  of  the  several 
British  monarchs  who  granted  them  appear  moreover 
in  their  composition.  James  I.  leads  the  list  of 
grantors  with  that  prolix,  diffuse,  and  wordy  style  of 
expression  so  common  in  his  age,  recounting  mar- 
vellous "  providences  "  of  a  special  cast ;  Charles  I. 
follows  with  a  more  concise  st3'le,  as  befitted  a  mon- 
arch of  greater  personal  dignity ;  tlu-ough  the  times 
of  Cromwell  and  the  Commonwealth  we  find  these 
colonies  singularly  neglected  ;  after  wliicli  Cliarles  II., 
—  from  whose  reign,  frivolous  though  he  was,  so  mucli 
excellent  legislation  takes  its  rise,  —  granted  pres- 
ently the  most  lil^eral,  and  indeed  the  only  thorougldy 
liberal  and  popuhir,  American  charters  of  this  whole 
colonial  age.  (r'rom  the  final  expulsion  of  the  Stuarts, 
British  policy  held  tlie  American  colonies  well  in 
check,  80  as  to  afford  a  rich  market  for  Britisii  manu- 
factures and  commerce,  and,  while  encouraging  colonial 
resources,  to  repress  all  tendencies  to  indi'iK'n<lence  or 
disloyalty r>|  All  tliese  cliartors  or  grants  for  American 
colonization  were  English  in  expression,  except  for  the 
Maryland  charter  of  1G32,  which  employed  the  Latin 
tongue,  —  a  royal  recognition,  most  likely,  of  rank 
and  scholarship  in  Lord  Baltimore,  the  lx;neficiary  of 
Charles  L,  who  was  a  devout  Roman  Catliolic' 

'  Sir  fifiirgo  Tnlvort,  first  I.or'l  I'altimuro,  wax  the  applirant  for 
tliis  rhartcr,  but,  .is  ho  died  before  its  execution,  it  wa."*  intrusted  to 
bin  son,  Cecil  Calvert,  the  second  Lord  Daltiraore. 


12  CONSTITUTIONAL  STUDIES. 

The  first  charter  of  Virginia,  which  James  I.  issued 
in  1606,  sliortly  before  the  primitive  Jamestown  set- 
tlement, granted  the  lands  along  our  northern  Atlantic 
coast  to  which  Great  Britain  laid  claim,  between  the 
34th  and  -loth  degrees  of  north  latitude,  to  two  dis- 
tinct companies,  one  of  which  had  its  headquarters 
at  London  and  the  other  at  Plymouth,  in  the  mother 
country.  Organizing  at  once  under  this  charter  of 
1606,  the  London  Company  sought  and  obtained  by 
1609  a  new  and  enlarged  charter  as  the  "  Virginia 
Company,"  for  prosecuting  its  practical  work  of 
American  settlement.  ^  Under  the  simple  reign  of 
James  I.  there  were  three  different  charters  granted 
to  this  oldest  of  American  colonies.  The  Plymouth 
Company  reorganized  in  1620  for  the  more  northerlj'- 
colonization  of  our  American  coast,  and  received  that 
year  from  James  I.  another  charter  for  "  the  planting, 
ruling,  ordering,  and  governing  of  New  England  in 
America."  Under  this  "  New  England  charter " 
came  the  Pilgrims  of  the  "  Mayflower  "  to  their  new 
Plymouth  of  Massachusetts  Bay ;  and  the  agreement 
signed  by  them  off  Cape  Cod  before  they  came  ashore 
bound  the  new  settlers  by  common  consent  into  a 
body  politic,  —  a  memorable  transaction.  Next  came 
the  charter  of  Massachusetts  Bay,  granted  in  1629 
under  Charles  I.,  which  by  1684,  after  the  establish- 
ment of  a  most  thriving  colony,  was  cancelled  by  the 
English  Chancery  during  the  reign  of  James  XL,  for 
alleged  infractions  of  the  royal  grant.  The  new 
charter  of  William  and  Marj^  in  1691,  to  which  we 
have  alluded,  annexed  Plymouth  finally  to  Massa- 
chusetts Bay  and  erected  Massachusetts  into  a  single 
colony.  Unlike  the  previous  INlassachusetts  charters, 
that  of  1691  designed  a  full  political  government. 

The  Pennsylvania  colony,  whose  proprietary  char- 
ter to  William  Penn  passed  the  seals  in  1682,  ex- 


THE  COLONIAL    GOVERNMENTS.  13 

hibits  various  fundamental  documents  which  testify 
to  the  prudent  and  thrifty  management  of  this  excel- 
lent Quaker  and  his  philanthropic  and  statesmanlike 
views.  By  virtue  of  liis  legal  supremacy,  Penn  as 
Governor  prescribed  from  time  to  time  a  frame  of 
government  with  increasing  liberality,  and  under  the 
document  of  1701  granted  broad  political  powers 
with  the  specific  approbation  of  the  Pennsylvania 
General  Assembly,  and  of  the  Governor's  Council, 
under  an  express  proviso  that  no  change  should  be 
made  in  these  fundaments  without  the  joint  assent  of 
the  Governor  and  six-sevenths  of  the  Legislature. 
This  famous  document  of  1701,  known  as  Penn's 
"Charter  of  Privileges,"  declared  full  liberty  of 
religious  conscience,  in  an  article  pronounced  inviol- 
able and  forever  incapable  of  amendment.  Among 
other  provisions  it  enlarged  the  English  common  law 
by  according  to  criminals  the  same  privilege  of  wit- 
nesses and  counsel  as  their  prosecutors,^  and  abolished 
the  common-law  forfeiture  which  attached  to  suicides 
and  deatli  by  the  "dcodand."  ^  William  Penn's 
charter  of  1701  to  Delaware  is  of  a  similar  scope; 
and  this  lattvr  domain  which  came  to  William  Penn 
as  proprietor  in  1G82  and  by  (piitclaiin  from  the 
Duke  of  York  was  known  in  early  colonial  times  a,s 
"  The  Territories." 

The  fii-st  of  the  so-called  Carolina  charters  —  for 
North  and  South  Carolina  were  long  colonially  united 
—  antedates  tlie  permanent  English  settlement  of 
this  Atlantic  coast,  havinpr  been  gmnted  to  Sir 
Walter  Raleigh  in  log  I  by  Queen  Eli/.a])oth.  That 
charter  really  lonstitutes  the  lii-st  step  in  the  work  of 

•  See  Article  VI.,  amendments  to  the  Constitntion  of  the  T''nitod 
Stated,  emhodying  this  s^mo  fojitiiro. 

2  This  pnivisioii,  In  ctwcntially  the  same  lanpuage,  found  its  way 
into  several  earlv  State  constitutions. 


14  CONSTITUTIONAL  STUDIES. 

British  colonization  in  America ;  and  five  voyages,  all 
of  thera  unsuccessful  in  planting  a  colony,  were  made 
under  it.  The  charter  of  1663  for  Carolina  was 
granted  by  Charles  II.  to  various  English  peers  as 
lords  proprietors,  and  John  Locke's  fundamental  con- 
stitution, drawn  up  at  the  instance  of  these  privileged 
owners  for  the  settlers,  followed  in  1669  to  last  only 
for  a  brief  and  turbulent  period.  Although  this 
scheme  of  the  broadest  political  philosopher  of  his 
age  proved  a  practical  failure,  as  history  has  recorded, 
setting  prerogative,  as  it  did,  high  above  self-govern- 
ment in  the  new  world,  seeking  to  establish  a  feudal 
tenure  in  the  primeval  soil,  avowing  the  absolute 
power  and  authority  of  every  freeman  over  his  slaves, 
and  declaring  the  Church  of  England  the  orthodox 
religion  of  the  colony,  it  had  some  good  points  in 
minor  details.  Probably  much  of  this  ill-adapted 
constitution  was  made  by  its  framer  to  order,  and  did 
not  embody  Locke's  personal  views. 

With  some  of  these  colonial  charters  went  out 
spontaneously  the  good-will  of  the  sovereign  who 
granted  it.  The  grants  of  Charles  II.,  in  particular, 
breathed  loving-kindness  to  his  beneficiaries.  In  the 
charter  to  William  Penn  he  recounts  that  love  and 
philanthropy  of  the  latter  to  the  native  Indians 
which  his  own  roj^al  ancestors  had  enjoined ;  and  the 
monarch  gave  and  confirmed  the  name  "Pennsyl- 
vania" to  the  colony  after  the  family  surname, — a 
token  of  royal  favor  towards  a  private  subject  with- 
out an  American  parallel.  Charles  II.  had  granted 
the  popular  charters  of  Connecticut  and  Rhode 
Island,  nearly  twenty  years  earlier,  in  affectionate 
language.  To  oiu'  "  loving  subjects "  is  the  ex- 
pression of  the  Connecticut  charter.  In  that  of 
Rhode  Island  (1663)  the  monarch  makes  special  men- 
tion that  these  settlers,  Roger  Williams  and  his  com- 


THE   COLONIAL    GOVERNMENTS.  15 

panions,  had  been  harshly  treated  for  their  religious 
views  by  the  other  New  England  colonies ;  he  recog- 
nizes ''  their  peaceable  and  loyal  minds,"  "  their  sober, 
serious,  and  religious  intentions,"  their  self-exile,  and 
their  prosperity  and  preservation  "  by  the  good  Provi- 
dence of  God,  from  whom  tlie  Plantations  have  taken 
theii'  names."  ^  And  to  these  good  subjects  the  King 
plainly  offers  himself  to  be  their  champion,  promising 
to  protect  them  against  all  molestation  from  their 
neighbors  ;  and  in  all  controversies  between  Rhode 
Island  and  the  other  New  England  colonies  which 
might  arise,  this  colony  is  specially  invited  to  appeal 
to  the  Cro\\ni  for  redress.'^ 

Emanating  from  the  same  national  source,  and 
embodying  a  single  national  puri)0se,  we  may  expect 
to  find  these  English  colonial  governments  closel}', 
on  the  whole,  resembling  one  another  in  essentials ; 
at  the  same  time  that  differences  of  local  origin  and 
development  give  rise  to  local  differences  in  their 
public  management. 

1.  As  to  the  structure  of  colonial  government. 
There  was  not  in  these  earlier  days  any  marked  sepa- 
ration of  fundamental  powers  such  as  Montesquieu 
lias  inculcated.  Hut  tlie  British  monarchs  after  1688 
strongly  favored  the  establishment  of  a  strong  royal 
executive  or  vicegerent  in  each  colony,  with  powers 
commensurate  for  lioldiiig  tlu^  settlers  in  allegiance 
U)  Great  liritain,  and  an  appointment  immediately 
dependent  \\\ion  the  Crown.  Such  was  the  royal  gov- 
ernor in  tbos(^  j)r()vincial  governments  wliich  consti- 
tuted a  majority  of  the  Amcriciin  colonies  ;  and  sucli, 
too,  regardless  of  her  former  usages,  or  of  the  favor 

>  "  Rhoile  Wand  nii<l  Providence  Plantations  "  was  the  early  Btyle 
of  thin  colony. 

"  See  Toore'n  Charters  and  Coniititations,  pauim. 


16  CONSTITUTIONAL  STUDIES. 

still  accorded  to  her  neighbors,  Rhode  Island  and 
Connecticut,  Avas  the  governor  imposed  upon  Massa- 
chusetts under  the  William  and  Mary  charter.  Lieu- 
tenant-Governor and  Secretary  were  for  Massachusetts, 
and  in  most,  if  not  all,  such  provinces  as  recognized 
these  lesser  officials,  appointed  directly  by  the  British 
Crown ;  while  in  certainly  eight  colonies  the  King 
commissioned  the  Governor,  or  chief  executive,  as 
his  own  immediate  representative  or  deputj^,  styling 
him  captain-general  and  commander-in-chief  over  the 
jurisdiction,  as  well  as  chancellor,  vice-admiral,  and 
ordinary.  In  our  American  provinces  the  Crown 
also  appointed,  directly  or  indirectly,  a  "  Council," 
whose  chief  function,  resembling  more  or  less  that  of 
a  board  of  directors,  was  to  advise  and  assist  the 
Governor  in  his  executive  duties.  This  council  held 
secret  sessions  and  possessed  often  a  share  in  legisla- 
tion, like  an  upper  House.  But  the  Massachusetts 
charter  of  1691  so  far  respected  ancient  local  usage 
as  to  permit  the  Council  of  that  colony  to  be  aj)- 
pointed  annually  from  the  representative  assembly 
(or  "  Great  and  General  Court "),  and  thus  operate 
somewhat  as  a  popular  check  upon  the  royal  gov- 
ernor's action. 1  With  advice  of  Council,^  a  provin- 
cial governor  had  usually  the  power  to  establish  local 
coiu'ts,  and  to  appoint  judges  and  other  colonial 
magistrates  and  officers ;  and  each  provincial  capital 
tended  to  become  the  seat  of  a  court  and  official 
circle  which  reflected  with  paler  brilliancy  the  cere- 
monials of  a  London  monarch.^ 

1  The  Governor  had,  however,  a  negative  upon  this  choice  of  a 
Council.     1  Story,  Commentaries,  §  171. 

2  Under  the  Massachusetts  charter  (1691)  all  appointments  by  the 
Governor  required  coufirmntion  by  the  Council  upon  seven  days'  no- 
tice, —  a  practice  preserved  in  that  State  to  this  day. 

*  See  Poore's  Charters  and  Constitutions ;  1  Story,  Commentaries, 
§  159  and  citations. 


THE   COLONIAL    GOVERNMENTS.  17 

As  a  popular  offset  to  all  tliis,  representative  gov- 
ernment and  the  legisliituro  bluoined  out  early  in  each 
American  colony,  and  the  JJritish  Crown  made  no 
effort  to  eradicate  it.  On  the  contrary,  the  royal  gov- 
ernor's commission  gave  him  authority  usually  to 
convene,  at  stated  times,  a  general  assembly  of  repre- 
sentatives of  the  freeholdei-s  and  planters ;  and  under 
such  authority  Provincial  Assemblies,  composed  of 
the  Governor,  the  Council,  and  the  Representatives, 
were  constituted;  the  Council  serving  perhaps  as  a 
separate  branch  or  upper  house  for  such  legislation, 
while  the  Governor  possessed  a  negative  upon  all  leg- 
islative proceedings,  and  very  considemble  latitude, 
besides,  to  prorogue,  adjouiii,  and  dissolve  the  Legis- 
lature, or  to  convene  it  whenever  and  wherever  he 
might   think    lit.^ 

While  colonial  legislation  would  thus  seem  vested 
usually  in  two  houses,  one  body  only,  like  the  Eng- 
lish House  of  Conmions,  came  close  to  the  heart  of 
the  local  constituency,  —  as  in  Virginia,  for  instance, 
whose  ''  House  of  Bui-gesses"  struck  the  early  chord  of 
revolution,  reckless  of  governor  and  royal  councillors 
alike.  That  phrase,  "  General  Court,"  so  long  applied 
to  this  ropresentiitive  assend)ly  in  Massachusetts,  did 
not  originatti  locally  even  in  its  earlier  chartei's  ;  ^  but 
for  both  Virginia  and  Massachusetts  the  old  "  General 
Court"  had  it.s  terms  or  sessions  defined  like  those  of 
an  I'jiglish  court  of  justice;  and  in  its  operations  it 
blended  judicial,  legislative,  and  even  executive  au- 
thority as  a  final  appellate  tribunal  of  the  colony  in 
all  mattei's.  In  M:issaclinselts,  as  in  most,  other 
colonies,  theLegislatuie  was  authorized "''  to  levy  taxes, 

'  See  Poore's  Charters  ami  C<>nstitntions  ;  1  Story,  Commentaries, 
§  159  and  citations. 

■^  See  Virginia  chartor  of  |r,|  l  \i,  \\\  I'ooro,  1".»0j,  wiiicli  prescribes 
a  "  (Jeneral  ("onrt  "  for  tliat  primitivo  colonv. 

•  Antl  HO  cxpreHsed  under  the  charter  of  1691. 


18  CONSTITUTIONAL  STUDIES. 

and  otherwise  pass  laws  for  the  common  interest; 
and  yet  so  great  was  her  royal  governor's  power,  on 
the  one  hand,  as  specified  in  the  charter  of  William 
and  Mary,  and  so  ill-defined,  on  the  other,  that  of  the 
"  General  Court,"  that  two  constitutional  doubts  had 
to  be  resolved  in  1726,  by  a  supplementary  charter 
from  George  I.  That  sovereign  did  not  incline 
strongly  to  the  side  of  the  local  colonists  in  this  con- 
troversy; for  he  ruled  (1)  that,  as  to  choosing  a 
speaker,  the  General  Court  might  make  such  choice 
subject  to  the  approval  of  the  Governor,  and  (2)  that, 
as  to  its  right  to  adjourn,  the  General  Court  might 
adjourn  for  two  days,  but  no  longer,  without  the 
Governor's  consent.^ 

In  Connecticut  and  Rhode  Island,  however,  the 
two  favored  jurisdictions  of  royalty,  legislation,  the 
choice  of  a  governor,  and  the  whole  business  of  con- 
stituting courts  and  bestowing  official  patronage  were 
confided  fully  by  royal  grace  to  the  free  settlers ;  and 
those  two  colonies,  under  their  respective  charters, 
organized  local  government,  as  they  were  permitted 
to  do,  upon  a  popular  and  republican  basis.  Here 
the  Governor,  Council,  and  Assembly  continued  an- 
nually chosen  by  the  freemen  down  to  the  American 
Revolution,  and  all  other  officers  were  appointed  by 
their  authority .^  Annual  elections  prevailed  here  as 
elsewhere  in  America,  so  far  as  there  were  popular 
elections  at  all,  —  whence  the  maxim,  familiar  a  cen- 
tury ago,  that  "  wherever  annual  elections  end  tyr- 
anny begins,"  —  and  the  colonial  assembly  moreover 
held  annually  its  wonted  sessions.     But  the  circum- 

^  Poore's  Charters  and  Constitutions  (Massachusetts). 

2  1  Storv,  Constitutions,  §  IGl,  observes  tliat  while  the  Statutes  of 
7  and  8  William  III.  required  tliat  all  i^overnors  appointed  in  charter 
or  proprietary  governments  should  be  approved  of  by  the  Crown,  this 
statute  w.as,  "  if  at  all,  ill  observed,"  and  produced  apparently  no 
change  in  the  colonial  policy. 


THE   COLONIAL    GOVERNMENTS.         19 

stances  of  original  settlement  in  Connecticut  and 
Rhode  Island  had  produced  the  anomaly  of  double 
capital  towns  and  rivals ;  so  that  under  their  respec- 
tive chartei-s  the  legislature  regularly  met  twice  a 
year,  rotating  in  the  one  colony  from  Hartford  to 
New  Haven,  and  in  the  other,  from  Providence  to 
Newport,  —  a  condition  which  long  outlasted  this 
colonial  era. 

In  the  tlu'ee  proprietary  governments  —  Maryland, 
Pennsylvania,  and  Delaware  —  the  grand  proprietor 
exercised  his  suWoyal  prerogative  of  appointing 
governors  answerable  to  himself,  as  likewise  of  be- 
stowing the  colonial  patronage,  and  defining  legis- 
lative authority.  Hence  we  find  Penn's  "  Charter  of 
Privileges  "  in  1701  proclaiming  freely  that  hence- 
forth there  shall  be  an  annual  Assembly  in  Penn- 
sjdvania,  with  power  to  choose  its  own  speaker  and 
other  ollicers,  to  judge  of  the  qualifications  and  elec- 
tions of  its  own  membei'S,  to  prepare  and  pass  bills, 
to  impeach  criminals,  to  retbess  grievances,  and  to 
exercise  "all  other  powers  and  privileges  of  an  as- 
sembly according  to  the  rights  of  the  free-born  sub- 
jects of  Englantl,  and  as  is  usual  in  any  of  the 
Ivinjr's  Plantations  in  America."  ^  And  in  certain 
a[)pointments  to  ofiice,  a  compromising  expedient  is 
SL't  forth  in  that  document,  long  traceable  in  the 
fiindamentiil  law  of  Pennsylvania  as  a  SUxte,  which 
empowered  the  freemen  to  choose  a  doul)le  numl)er, 
leaving  the  Governor  to  select  one  or  tlie  other  for 
the  office.  Here,  as  in  all  our  other  American  colo- 
nies except  roiiiiecticnt  and  Rhode  Island,  legislation 
by  tlic  popular  braneli  icciuired  the  (governor's  specific 
approval,  and  liis  veto  of  a  measure  was  absolute. 

Some  minor  difTerenees  may  be  observed  in  respect 
to  the  mode  of  enacting  laws  in  tlie  several  cuilonies; 
'  I'ooro's  Charters  niul  CunstitutioDH  (PcuiiHylvouia)- 


20  CONSTITUTIONAL  STUDIES. 

and  yet  the  legislature,  of  which  at  least  one  branch 
the  people  might  freely  choose  to  represent  and  de- 
fend their  collective  interests,  became  early  a  palla- 
dium of  the  American  system  inseparable  from  popular 
liberty,  though  in  the  earliest  of  these  American 
charters  no  such  provision  was  clearly  set  forth.  For 
free-born  Britons  were  not  likely  to  endure  long  the 
exercise  of  arbitrary  power  by  king  or  incorporators 
in  this  new  world.^  By  the  eighteenth  century,  there- 
fore, tliis  right  of  colonists  to  participate  by  their 
representatives  in  all  local  legislation  was  fairly  con- 
ceded by  the  home  government ;  but  as  to  provincial 
governments  there  continued  a  controversy.  For  pro- 
vincial colonists  contended  that  such  representation 
was  a  matter  of  right ;  but  the  Crown  and  its  legal 
advisers,  that  representation  was  a  privilege  only, 
subject  to  the  pleasure  of  the  parent  government. 
In  the  political  struggles  from  time  to  time  which 
culminated  under  George  III.  in  bloodshed,  the  royal 
governor  would  harass  the  colonial  legislature  to  the 
extent  of  his  ample  authority,  or  would  long  neglect 
to  convene  it,  —  practical  mischiefs  which  our  Declara- 
tion of  Independence  boldly  deuounced,  and  which 
many  a  bill  of  rights  or  constitution  in  the  revolting 
States  of  America  took  care  to  guard  against  for  tlie 
future.^ 

^  Mr.  Hnteliinsoii,  in  his  rolmiial  History  of  Massacluisetts,  94 
(cited  1  Story,  Constitntioii,  §  IfiO),  skctolios  admiral)!}'  tlie  progress 
made  in  all  tlioso  early  colonies,  except  Maryland  (whose  charter  made 
express  jirovision),  before  the  reijyn  of  Charles  TT.,  in  estahlisliinej  a 
representative  Icp^islature  of  some  sort  and  forcins^  its  recojjjnition 
upon  the  chartered  pi-oprietors  or  incor)>orators.  "  After  the  restora- 
tion (lf)8S),"  he  adds,  "  there  is  no  instance  of  a  colony  settled  without  a 
representation  of  the  peo])le,  nor  any  attempt  to  deprive  the  colonies 
of  this  i)riviloa;e,  except  in  the  arbitrary  reign  of  King  James  the 
Second." 

2  Tn  (he  colony  of  New  York  (and  semhle.  in  Virginia  also)  the 
British  Crown  before  the  middle  of  the  eighteenth  century  succeeded  in 


THE   COLONIAL    GOVERNMENTS.  21 

The  germ  of  popular  government  in  the  earlier 
colonial  charters  consists,  like  that  of  all  private  guilds 
or  corporations  at  the  common  law,  in  bringing  the 
whole  body  of  stockholders  or  those  immediately  con- 
cerned with  affairs  into  an  annual  meeting  for  the 
election  of  managing  officei-s.  Such  is  the  component 
element  of  government  in  that  admirable  system  of 
New  England  towns,  wliose  inhabitants  came  together 
once  a  year  to  discuss  and  arrange  local  affaire  and 
to  choose  their  selectmen.  And  to  some  extent  any 
colony  newly  planted  and  small  in  numbers  might 
conveniently  assemble  at  stated  times  for  the  general 
regulation  and  control  of  affaii-s  ;  but  as  new  settlers 
scatter  over  the  territory  and  extend  as  well  as  local- 
ize their  interests  and  population,  either  the  proxy  or 
the  representative  principle  comes  soon  into  play. 
Representation  serves  the  convenience  of  modern 
civil  government  popularly  conducted,  as  does  the 
proxy  in  private  corporations.  According  to  tlie 
expression  of  the  Connecticut  charter  of  1062,'  an 
option  was  given  the  settlers  to  hold  either  ''a general 
meeting  "  of  tlie  freemen  or  a  representative  assembly, 
and  the  colonists  naturally  enough  chose  the  latter. 
But  popular  n-prescntiition  as  sanctioned  by  Charles  II. 
and  the  seventeenth  century  was  too  crude  to  last, 
btvsed  as  it  was  in  Connecticut  upon  precise  town 
equality  ;  while  in  Khf>do  Island,  Newport  was 
allowed  the  permanent  precedence  over  all  other 
towns   of   the    colony,    Providence    included,    which 

entaJilirthiiiR  xcpteniiiiil  aasfrnMics,  in  iinitntion  of  the  soptf^niiial  I'nr- 
liamontR  dI'  tlio  parfiit  comitry,  "  whicli  w.xs  a  iin.iaiiro  so  offensive  to 
tho  poopio  that  it  constitntod  ono  of  tlioir  priov.inces  j)roponniJoil  at 
the  cominpncpincnt  of  tho  Aniorican  Hovolution."     1  Story,  §  167. 

'  "  A  body  rorporatp  ami  politic  hy  tho  name  of  thf>  povcnmr  ami 
company  of  tho  English  Colony  of,"  etc.,  is  tho  title  cniployeil  in  the 
Connoctiint  and  Hhodo  Island  rharteraof  Charles  II.,  tho  beat  fruitiou 
of  these  royal  American  charters. 


22  CONSTITUTIONAL  STUDIES. 

were  classed  in  political  power  by  two  set  grades. 
Some  towns  grow  into  great  cities,  while  others  de- 
cline or  become  stagnant ;  and  such  a  fixed  basis  of 
town  representation,  which  left  no  chance  to  apportion 
by  population,  doomed  at  length  these  most  lasting 
of  all  colonial  charters  more  than  any  other  defect  in 
them ;  for  being  charters  and  royal  ones,  there  was 
left  no  chance  to  amend  them.  Representation  by 
towns  instead  of  numbers  was  long  the  British  fashion 
on  either  side  of  the  Atlantic ;  but  the  Massachusetts 
charter  (1691)  from  William  and  Mary  provided  with 
a  wiser  foresight  that  the  colonial  legislature  might 
alter  later  at  its  discretion  the  basis  of  town  represen- 
tation drawn  up  in  the  instrument.  And,  in  fine,  the 
flexibiUty  of  provincial  over  charter  governments  in 
all  such  fundamental  matters  was  doubtless  a  reason 
for  preferring  them  upon  experience  in  the  colonial 
policy  of  the  parent  country .^ 

2.  As  to  the  fundamental  safeguards  of  allegiance 
to  Great  Britain.  Besides  the  practical  constraint 
which  any  royal  governor  might  have  exerted  while 
clothed  with  the  ample  powers  we  have  enumerated, 
were  certain  fundamental  expressions  in  these  colo- 
nial charters,  which  bomid  grantees  and  the  colonists 
to  both  legal  and  moral  compliance.  All  thirteen  of 
these  American  colonies  lived  under  fundamental  re- 
strictions that  no  laws  should  be  made  repugnant  to 
those  of  England,  or  that  as  nearly  as  convenient 
the  laws  should  be  consonant  with  and  conformable 
thereto ;  and  either  expressly  or  by  necessary  impli- 
cation it  was  provided  tliat  the  laws  of  England 
should  be  in  force  in  the  colony  so  far  as  ajiplica- 

^  As  alrcaly  shown  (p.  13),  Penn's  "Charter  of  Privilec^es " 
(1701)  was  made  capable  of  ainendineiit  uuder  certain  striugeut 
conditious. 


THE   COLONIAL    GOVERNMENTS.  23 

ble.^  In  the  latest  and  most  liberal  charters  this 
written  reservation  was  still  expressed  as  in  the  early 
Virginian  document  of  1609. 

Thus  were  our  American  colonists  nurtured  and 
brouglit  up  in  the  knowledge  of  a  fundamental  re- 
straint upon  local  legislation ;  and  this,  aside  from 
that  other  written  constraint  upon  local  government 
which  the  charter  itself  imposed.  Some  power  ex- 
ternal to  the  colonial  legislature  must  have  existed 
for  determining  the  validity  of  its  enactments;  and 
that  paramount  power  the  parent  government  nat- 
urally claimed  as  its  own.  Besides  the  royal  gov- 
ernor's vigilant  exercise  of  a  negative  upon  such 
local  colonial  legislation,  the  British  monarch  re- 
served his  own  right  to  ajjprove  or  disapprove,  —  a 
prerogative  exercise  from  which  Maryland,  Connecti- 
cut, and  Rhode  Island  alone  were  exempt.^  Pa- 
rental supremacy  was  still  further  aided  by  the 
judicial  appeal  which  lay  from  the  decisions  of  all 
colonial  courts  to  the  English  privy  council,  —  a 
practice  which,  on  the  whole,  seems  to  have  been 
deemed  by  our  colonists  a  privilege  ratlier  than  a 
grievance.''  Except,  however,  for  repugnant  enact- 
ments, the  colonial  legislatures  in  America  exercised 
a  broad  local  authority,  particularly  in    matters  of 

*  Snch  a  doclaration  w.ia  ronclu.sivo  ami  cmlil  not  afterwards  be 
abrogated  by  the  Crown,  bcin^  a  fundamental  nilo  uf  the  original 
settlcniont.     1  Sl(.ry.  §  150. 

'■^  "  In  all  tlio  (jtlior  colonios  [oxcopt  ^^arvland,  Ponnocticut,  and 
Rhode  Island  I  the  King  ])o«iso.<f.sod  tlio  power  of  alirogating  tlicni  [tlio 
laws],  and  they  were  not  final  in  their  anthoiity  nntil  they  had  passi-d 
under  liiA  review."  1  Story,  §  171.  See  also  statnto  7  and  8  Wil 
Ham  III.  c.  22,  derlaring  exi)rossly  that  all  colonial  laws,  by  laws, 
usages,  and  customs  rfi)ngnant  to  any  law  of  the  kingdotu,  shall  bo 
utterly  void.     1  Story,  §  1(',4. 

■  About  the  year  IfiHO.  .M.'u«<aclui.setts,  Hhodf  Island,  and  Con- 
nectirut  inclined  to  dispute  this  ri^ht  of  appeal,  but  the  contention 
•ubsided. 


24  CONSTITUTIONAL   STUDIES. 

local  taxation.^  Oaths  of  allegiance,  finall}-,  or  the 
"  freeman's  oath,"  Avere  much  relied  upon  for  binding 
a  subject  in  conscience  to  his  British  sovereign,  under 
penalties  of  perjury. 

3.  As  to  civil  rights.  Except  for  Pennsylvania, 
the  charters  under  wliich  these  colonies  were  first 
settled  are  found  to  contain  an  express  ro3'al  declara- 
tion that  all  subjects  and  their  children  inhabiting 
therein  shall  be  deemed  natural  born,  and  shall  enjoy 
all  the  privileges  and  immunities  of  such  subjects.^ 
In  some  of  them  the  King  furthermore  concedes  ex- 
pressly the  right  of  his  grantees  to  transport  to  the 
new  colony  all  such  British  subjects  and  strangers  as 
are  willing  to  go.^  The  Virginia  charter  of  1606  set 
the  example  of  a  royal  guaranty  of  indemnity  to  all 
English  subjects  and  those  of  allied  powers,  against 
robbery  and  spoliation  by  his  colonists. 

Under  the  Connecticut  and  Rhode  Island  charters, 
self-government  was  freely  committed  to  the  "  free- 
men "  of  the  colony ;  while  other  royal  grants  less 
democratic  confined  suffrage  to  "freeholders"  or 
men  of  specified  property  among  the  colonists. 

4.  As  to  inter-colonial  rights.  All  British  dwellers 
in  the  American  colonies  were  fellow-subjects  of 
the  mother  country,  and  for  many  purposes  were  to 
be  deemed  one  people  ;  each  one  might  lawfully  in- 
habit otlier  colonies,  or  inherit  lands  in  tliem  by 
descent.^     Charters  themselves,  however,  were  gen- 

^  For  the  issue  of  taxation  as  an  inherent  right  in  the  colonial 
legislatures  (wliicli  more  tlian  any  other  ])rovokc(l  the  American  Revo- 
lution) see  1  Story,  Constitutional  Law,  §§  lCG-170. 

2  1  Story,  §  1 56. 

8  See,  6.  g.,  Massachusetts  charter  of  1G29;  Connecticut  charter  of 
1662. 

4  1  Story,  §  178;  Jay,  C.  J.,  in  2  Dall.  470, 


THE   COLONIAL    GOVERNMENTS.         25 

erally  silent  <jn  such  points  ;  but  we  tind  Cliaiies  II., 
out  of  his  .special  solicitude  tor  the  persecuted  Rhode 
Islanders,  asserting  expressly  in  their  charter  of  16G3, 
that  they  may  repass  and  trade  with  his  other  Eng- 
lish colonies.  Connncrcial  intercoui-se,  not,  of  course, 
without  some  rivalry  and  collision,  began  very  early 
among  these  colonies ;  ^  and  the  regulation  of  such 
intercourse,  a,s  well  as  of  extradition  and  other  recii>- 
rocal  conveniences,  soon  engaged  their  peculiar  atten- 
tion, as  we  shall  show  later.^ 

5.  As  to  religious  freedom  and  philantlu'opy. 
Colonies  as  to  matters  of  faith  differed  both  in 
tenets  and  practice,  Ix-ing  Protestant,  liowever,  in 
the  main,  and  imbued  with  tlie  prevalent  spirit  of  the 
English  Reformation.  Liberal  religion,  or  rather 
the  desire  to  escape  conformity  to  church  establish- 
ments at  home  anfl  to  enjoy  free<lom  of  religious 
faith  in  the  new  world  after  some  new  method, 
operated  as  a  powerful  incentive  to  American  emigra- 
tion, even  where  the  mind  miglit  not  yet  have  been 
open  to  full  religious  tolerance.  Yet  the  genius  of 
these  new  world  institutions  tended  unqueslionaltly 
to  religious  liberty,  and  in  the  Pennsylvania  and 
Rhode  Island  colonies  guaranties  for  the  rights  of 
conscience  were  already  promulgated,  very  broad  for 
the  age.  "All  confessing  one  V^^^^^.  '\\\  any  way  sliall 
live  unmolested,"  declares  in  substance  Penn's  Char- 
ter of  1701,  "and  all  professing  belief  in  Christ  shall 
be  capable  of  serving  in  ofllcn  in  the  colony."  In  tlio 
Miussaehusetts  charter  of  IHOl,  on  the  otiier  hand, 
granted  while  the  expulsion  of  a  Roman  Catholic 
dynasty  was  fresli  in  tlie  Rritisli  mind,  William  and 

*  See  the  Jirrival  of  Ji  Mnrylnnd  vpssol  in  MnssnchuACtts  Bay,  chron* 
icled  in  WinthmpV  .lonrnal.  OctohiT  U.  1M4. 
^  See  TcndcDcics  to  Union,  I'art  II.,  fat. 


26  CONSTITUTIONAL  STUDIES. 

Mary  gave  direction  that  liberty  of   conscience   be 
allowed  to  all  inhabitants  "except  Papists." 

The  Stuarts  had  cherished  the  laudable  wish  of 
converting  the  American  Indian  to  civilized  arts  and 
Cluistianity ;  and  James  1.,  in  his  hrst  charter  to 
Virginia  (1606),  zealously  commended  "  so  noble  a 
w^ork"  in  the  propagating  of  Cluistian  religion  to 
such  people  as  yet  live  in  darkness  and  miserable 
ignorance  of  the  true  worship  of  God,  so  as  in  time 
to  "bring  the  infidels  and  savages  living  in  those 
parts  to  human  civility  and  to  a  settled  and  quiet 
government."  Little  practical  success,  it  is  well 
known,  attended  such  humane  efforts  by  the  Anglo- 
American  except  in  Pennsylvania  ;  and  philanthropic 
sentiment  towards  the  red  race  prevailed  most  strongly 
in  this  colonial  age  among  benefactors  whose  hearts 
dilated  jit  a  safe  distance. 

6.  As  to  trade  and  business  occupation.  British 
policy  towards  these  American  colonies  developed,  as 
history  shows,  in  opening  up  on  this  western  Atlantic 
coast  a  grand  market  for  home  manufactures.  Mobile 
stimulating  the  loyal  and  industrious  settlers  to  cher- 
ish and  supply  the  natural  productions  of  this  new 
region  in  return,  thus  giving  scope  to  a  lucrative 
British  commerce.  Tlifit  the  southern  colonics,  Avith 
their  plantations  of  tobacco,  rice,  and  indigo,  w^ere 
fostered  differently  from  the  northern  cannot  he 
doubted.  Charters,  to  be  ^surc,  had  little  to  promul- 
gate for  an  economic  policy ;  but  tliose  of  New  Eng- 
land, whose  hardy  inhabitants  pursued  the  cod  and 
whale  into  distant  waters,  ropeateclly  commend  and 
encourage  the  "  trade  of  fishing  "  towards  the  close 
of  the  seventeenth  century ;  the  Rhode  Island  charter 
in  1663  containing  sundry  royal  details  as  to  "  the 
business  of  taking  whales." 


-THE   COLONIAL    GOVERNMENTS.  27 

It  is  curious  to  observe  that,  in  emulation  of  Spain, 
these  Kiiglisli  charters  of  the  seventeenth  century, 
beginning  witli  Virginia,  reserved  specilicaUy  to  the 
crown  onc-lifth  of  all  such  gold  and  silver  as  the 
chai-tered  colony  might  produce.  That  of  Massachu- 
setts, in  lOm,  added  one-liftli  of  all  precious  stones; 
while  I'enn's  charier,  which  passed  the  seals  ten  years 
earlier,  required  two  beaver  skins  a  year,  besides  the 
talliage  t»f  gold  and  silver.  Had  the  King  levied 
upon  rennsylvania  coal  and  iron,  it  might  have  been 
more  to  the  purpose;  for  the  present  exaction  could 
have  yielded  very  little  to  the  King's  treasmy. 

7.  As  to  land  tenure.  Under  all  our  colonial 
charters,  —  James  I.  setting  for  Virginia  tlie  earliest 
example,  —  the  new  soil  in  America  was  to  be  held 
from  the  Crown  in  free  and  common  soca^re,  com- 
pletely  divested  of  all  feudal  burdens  such  as  con- 
tinued to  encumber  land  tenure  in  the  mother  country 
until  after  the  restoration  of  Cliarles  II.  An  ines- 
timable privilege  this  to  America;  for  it  encouraged 
these  Athintic  settlers  to  become  freeholders,  owners 
sevprally  of  the  soil  tliey  cultivated  in  fee  and  inde- 
pendently, witliout  lease  or  manorial  encumbrance  at 
all.^  "  Partly  from  the  cheapness  of  land,  and  partly 
from  an  innate  love  of  independence,"  obsen'cd  Judge 
Story  from  liis  native  standpoint,  more  than  fifty 
years  ago,  "  few  agricultural  estates  in  the  whole 
country  liavo  at  any  time  Ixjcn  held  on  lease  for  a 
stipulated  rent.  The  tenants  and  occupiers  are  al- 
most universally  tlie  ])roprietoi-s  of  the  soil  in  fee- 
simple.     Strictly  speaking,  tlierefore,  there  has  never 

1  M.inorml  Mtnt^s  woro  pormfttod  nndor  Bomc  chnrtors,  ra  in  Now 
York,  hwt  thoy  ^cnn  f.idod  into  insipniflrnncc.  Tlio  nlmost  total 
abppnrpof  loasohold  ostatofl  in  onr  colonial  history  is  a  remarkable  cir- 
cnmstanro.     1  Story,  §  172. 


28  CONSTITUTIONAL   STUDIES. 

been  in  this  country  a  dependent  peasantry."  The 
yeomanry,  he  adds,  are  absolute  owners  of  the  soil  on 
which  they  tread,  and  their  character  has  from  this 
circumstance  been  marked  by  a  jealous  watchfidness 
of  their  rights  and  by  a  steady  spirit  of  resistance 
against  every  encroachment.^ 

Connected  with  such  simplicity  of  tenure,  a  simple 
real-estate  system  was  seen  to  prevail  in  the  Ameri- 
can colonies  from  the  earliest  times,  both  with  regard 
to  the  language  of  the  deed  itself  wliich  made  con- 
veyance and  the  public  record  of  land  titles.  We 
find  John  Locke's  charter  of  1669  establishing  in  the 
Carolinas  a  registry  of  deeds  for  each  convenient 
precinct ;  and  the  same  registry  system  sprang  up  so 
spontaneously  in  the  other  colonies,  north  and  south, 
as  to  have  become  general  here  a  century  before 
Blackstone  was  seen  doubtfully  commending  a  scheme 
of  public  records  for  general  adoption  at  home  in 
evincing  real-estate  title,  in  place  of  the  time-honored 
family  chest  crammed  with  old  parchments.^ 

1  1  Story,  173. 

2  2  Bl.  Com.  343.  Pennsylvania's  Frame  of  Government  in  1683  is 
seen  (§§  20-23)  providing  for  au  extensive  registry  system  in  the 
colony,  for  wills,  births,  marriages,  etc.,  as  well  as  the  record  of 
conveyauces. 


III. 

REVOLUTIONARY  BILLS   OF  RIGHTS. 

1776-1783. 

When  in  1776  these  American  colojaies  shook  off 
the  British  yoke  and  proclaimed  independence,  their 
leading  statesmen  were  familiar  witli  the  English 
"Declaration"  or  "Bill  of  Rights,"  that  glorious 
enactment  under  which  in  1689  the  crown  was  settled 
upon  William  and  Mary  to  the  hnal  exclusion  of  the 
Stuarts.  These  statesmen  knew  also  the  funda- 
mental precepts  of  Magna  Gharta  and  of  the  "Peti- 
tion of  Right"  and  Haheas  Corpus  act,  — documents 
dear  to  a  British  ancestry  that  had  contended  stoutly 
for  individual  freedom.  Other  maxims  they  formu- 
lated by  experience,  and  while  brooding  over  Amer- 
ica's immediate  wrongs  sustained  in  the  vexation  of 
her  colonial  legislatures  by  the  ro3'al  governors  and  in 
the  tyranny  of  standing  armies  imported  to  overawe 
the  people.  Other  shining  truths  of  political  govern- 
ment had  been  embodied  from  early  colonial  times  in 
local  codes  and  documents,  such,  for  instance,  as  the 
Massachusetts  "Body  of  Liberties "  of  1641.  Mon- 
tesquieu, whose  "  Spirit  of  the  Laws  "  had  lately  been 
translated  into  English  and  widely  circulated,  was 
the  new  political  oracle  of  an  age  not  too  far  remote 
from  the  times  of  Locke,  Sidney,  and  Vane  to 
cherish  their  precious  remembrance.  Hence,  with- 
out the  need  of  tracing  back  an  origin  to  times  or 
countries  more  remote,  those  bosom  truths  of  politics 


30  CONSTITUTIONAL   STUDIES. 

Mhicli  found  expression,  during  this  revolution  of 
the  thirteen  colonies,  in  M'hat  their  severul  constitu- 
encies were  wont  to  style  a  "Bill  of  llights,"  basic 
as  the  structure  of  constitutional  government  itself. 

"Bill  of  nights  "  may  be  thought  a  less  appropriate 
phrase  here  than  in  England,  to  denote  these  fun- 
damental maxims  of  life,  liberty,  and  property,  essen- 
tial to  civil  liberty;  for  while  the  English  "Bill  of 
Rights  "  is  an  act  of  legislation  (or  bill)  proceeding 
from  the  omnipotent  Parliament  (though  not  without 
some  special  royal  sanction),  a  "Bill  of  Rights"  for 
an  American  State  originates  in  popular  convention 
and  forms  part  of  that  written  body  of  fundamental 
law  to  which  all  legislative,  all  executive,  and  all 
judicial  authority  must  submit  and  be  held  subject. 
Nor  with  America  is  it  even  a  constitutional  contract 
(as  in  one  sense  perhaps  was  the  English  legisla- 
tion of  1688)  between  sovereign  and  representatives 
of  the  people,  two  great  departments  of  government ; 
since  the  same  people  and  their  representatives  in 
convention  who  declare  these  rights  may  separate  and 
define  at  their  discretion  all  the  departments  of  all 
the  powers  of  government,  whether  executive,  legis- 
lative, or  judicial,  and  clothe  them  with  their  several 
functions.  A  "Declaration  of  Rights,"  like  a  "Dec- 
laration of  Independence,"  is  for  America  the  fitter 
phrase;  and  both  the  United  Colonies  in  Congress 
and  various  individual  colonics  were  seen  in  1776 
setting  the  precedent  of  declaring  such  primitive 
and  fundamental  truths  before  essaying  the  more 
formidable  work  of  framing  a  practical  scheme  of 
government. 

Nor  is  this  "Declaration"  or  "Bill  of  Rights" 
easily  distinguishable  in  all  respects  from  that  scheme 
of  practical  government  with  which  a  written  consti- 
tution should  be  mainly  occupied.     Various  leading 


REVOLUTIONARY  BILLS   OF  RIGHTS.      31 

truths  essential  to  liberty  are  enjoined  among  the 
chartered  particulars  of  government,  which  a  philo- 
sophic mind  would  look  for  rather  in  the  blazing 
introduction.  When  the  Federal  constitution,  fresh 
from  Philadelphia,  was  opposed  for  its  want  of  a 
formal  "Bill  of  Rights,"  several  such  safeguard 
maxims  were  pointed  out  as  they  glittered  among  the 
details  of  national  authority  proposed  by  that  original 
instrument.  And  State  experience  for  more  than  a 
century  shows  besides  that,  however  well-drawn  may 
be  our  schedule  of  civil  rights,  other  precious  gen- 
eralities, equally  fundamental,  appropriate,  and  obliga- 
tory, are  likely  to  be  found  scattered  conveniently 
enough  among  the  main  provisions  of  the  charter. 

Virginia,  first  in  years  and  influence  among  these 
American  colonies,  led  off,  that  memorable  year,  in 
preparing  the  platform  of  human  freedom,  after  the 
Continental  Congress  had  given  its  momentous  warn- 
ing to  the  States  that  independence  approached  and 
that  self-government  must  be  provided  for.  The 
Virginia  "  Bill  of  Rights  "  (styled  originally  a  Decla- 
ration of  Rights  "  pertaining  to  the  people  and  their 
posterity  "  as  the  basis  and  foundation  of  government) 
preceded  by  nearly  a  month  the  "Declaration  of 
Independence  "  at  Philadelphia,  though  framed  for 
concurrence  and  designing  full  harmony  with  Con- 
gressional action  anticipated.  A  representative  con- 
vention, comprising  many  members  of  the  Virginia 
House  of  Burgesses,  met  at  Williamsburg,  May  6, 
1776,  and  unanimously  adopted  this  Declaration  of 
Rights  on  the  12th  of  June,  as  preliminary  to  the 
work  of  framing  a  State  constitution.  The  instru- 
ment was  drawn  up  by  that  friend  of  freedom,  the 
illustrious  George  Mason,  and  the  couA^ention  only 
slightly  amended  it.     Its  preamble  and  introductory 


32  CONSTITUTIONAL  STUDIES. 

clauses,  taken  from  a  draft  which  Jefferson  had  sent 
from  Philadelphia,  where  he  was  composing  the  more 
famous  document  of  these  United  Colonies,  proclaim 
those  same  immortal  rights  of  life,  liberty,  and  the 
pursuit  of  happiness,  in  the  individual,  and  that 
same  institution  of  all  government  for  the  benefit  and 
security  of  the  governed,  who  have  the  unalienable 
right  to  reform,  alter,  or  abolish  as  may  most  con- 
duce to  the  general  weal. 

All  power,  declared  further  the  Virginia  Bill  of 
Rights,  is  vested  in  and  derived  from  the  people,  and 
magistrates  are  their  trustees  and  servants.  No 
man  or  set  of  men  is  entitled  to  exclusive  emolu- 
ments or  privileges  from  the  people,  but  in  considera- 
tion of  public  services,  which  are  not  descendible, 
so  that  office  should  not  be  hereditary.  Elections 
of  representatives  ought  to  be  free,^  with  a  right  of 
suffrage  here  broadly  stated;  nor  should  those  of 
the  community  "  be  taxed  or  deprived  of  their  prop- 
erty for  public  uses  without  their  own  consent  or 
that  of  their  representatives.  "^  There  should  be 
no  suspension  of  laws  or  of  their  execution  without 
consent  of  the  representatives  of  the  people.^  In  all 
criminal  prosecutions,  a  man  has  a  right  to  know  the 
cause  and  nature  of  his  accusation,  to  be  confronted 
with  the  witnesses  and  accusers,  to  call  for  evidence 
in  his  favor,  and  to  be  tried  by  an  impartial  jury  of 
the  vicinage,  without  whose  unanimous  consent  he 
cannot  be  found  guilty.  He  cannot  be  compelled  to 
give  evidence  against  himself;  nor  can  he  be  deprived 
of  his  liberty  except  by  the  law  of  the  land  and  the 

1  From  English  Bill  of  Rights,  1689  (Right  8). 

2  A  protest  against  the  colonial  stamp  and  excise  acts  of  Par- 
liament. 

8  From  English  Bill  of  Rights  (Rights  1  and  2) ;  and  see  abuses  by 
royal  governors  in  these  colonies,  recited  in  Declaration  of  Independ- 
eace. 


REVOLUTIONARY  BILLS  OF  RIGHTS.      33 

judgment  of  his  peers.  ^  Excessive  bail  ought  not  to 
be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted.  ^  General  search- 
warrants  ought  not  to  be  granted,  but  only  specific 
ones.^  Even  in  civil  suits  the  ancient  trial  by  jury 
is  the  preferable  mode,  and  ought  to  be  held  sacred. 
Freedom  of  the  press  is  one  of  the  great  bulwarks  of 
liberty.*  A  well-regulated  militia  is  the  natural  and 
safe  defence  of  a  free  state ;  standing  armies  in  time 
of  peace  are  dangerous  to  liberty ;  and  in  all  cases  the 
military  should  be  strictly  subordinate  to  the  civil 
power.  ^  People  have  the  right  to  uniform  govern- 
ment, and  no  government  separate  from  Virginia 
ought  to  be  erected  within  its  limits. ^  No  free  gov- 
ernment can  be  preserved,  "  but  by  a  firm  adlierence 
to  justice,  moderation,  temperance,  frugality,  and 
virtue,  and  by  frequent  recurrence  to  fundamental 
principles."  Of  the  sixteenth  and  final  clause,  advo- 
cating religious  toleration,  we  shall  make  further 
mention  presently. 

Expressed  in  concise  and  admirable  language,  the 
Virginia  Bill  of  Rights  (whose  sixteen  sections  we 
have  thus  condensed)  was  broad  and  universal  in 
sentiment,  breathing  the  spirit  of  human  brotherhood, 
without  a   hint   of   race    or   class   subjection.     The 

1  Last  clause  is  from  Marina  Charta  (  a.  d.  1215),  the  famous  §  45, 
whose  general  idea  was  aided  by  the  recollection  of  wrongs  under 
George  III.  (see  Declaration  of  Lidepeudeuce),  in  depriving  colonists 
of  jury  trial  and  transporting  them  to  be  tried  across  the  seas. 

2  From  English  Bill  of  Rights,  verbatim  (Right  10). 

8  Recalling  abuse  of  "  writs  of  assistance  "  under  George  III. 
*  A  new  maxim  in  its  present  expression.     But  cf.  English  Bill  of 
Rights  (Right  9)  as  to  freedom  of  speech  in  Parliament. 

5  See  standing  army  grievances  under  the  King  recited  in  Declara- 
tion of  Independence,  also  English  Bill  of  Riglits  (Rights  6  and  7). 
Dependence  upon  a  militia  is  more  strongly  asserted  tlian  hitherto. 

6  This  seems  to  have  had  a  local  and  immediate  reference  to  the 
Revolution  of  1776.  The  separation  of  West  Virginia  during  1861-65 
suggests  a  thoughtful  commentar}^ 

3 


34  CONSTITUTIONAL  STUDIES. 

declaration  served  well  for  example  to  the  other 
twelve  States ;  and  so  proud  of  this  instrument  have 
Virginians  remained  tliat  they  affixed  it  unchanged 
to  their  new  constitution  of  1830,  and,  amending  it 
but  slightly  for  the  constitution  of  1850,  incorporated 
it  once  more  intact  in  the  new  framework  of  1861. 
With  such  further  sections  as  civil  war  and  the  for- 
cible abolition  of  slavery  next  compelled  (though  not 
for  changing  a  single  sentence)  that  "  Bill  of  Rights  " 
remains  to  this  day,  permanent  in  its  original 
assertions. 

Among  other  American  "  Bills  of  Rights  "  of  the 
Revolutionary  era,  that  of  Pennsylvania  next  deserves 
attention.  From  the  State  and  city  whose  liberty 
bell  proclaimed  independence  through  all  the  land, 
emanated,  soon  after  the  adjournment  of  our  Con- 
tinental Congress,  a  novel  scheme  of  State  govern- 
ment, preceded  by  its  own  "Declaration  of  Rights." 
This  was  the  work  of  a  State  convention  which  sat 
from  July  15  to  September  28,  1776.  The  Pennsyl- 
vania "Declaration,"  like  that  of  Virginia,  consisted 
of  sixteen  articles,  which  adopted  most  of  that  earlier 
document,  with  slight  variations  of  language.  "  All 
elections  ought  to  be  free  "  is  the  happier  Pennsyl- 
vania assertion,  enlarging  the  English  and  Virginia 
formulas;^  and  all  freemen  having  a  common  public 
interest  (the  document  adds)  have  the  right  to  elect 
or  be  elected  to  office.  Again  (improving  upon  the 
Virginia  expression)  the  accused  in  criminal  prosecu- 
tions "  hath  a  right  to  be  heard  by  himself  and  his 
counsel." 2    Quaker    sentiment    is    honored    by   an 

1  I'eiiiisylvauia  Declaration,  No.  7.     See  supra,  page  32. 

-  I'eiiu's  Cliarter  of  Liberties,  art.  v.  (1701)  expressly  coucetles  to 
all  crimiuals  "the  same  privileges  of  witnesses  and  counsel  as  their 
prosecutors,"  —  a  decided  gain  upon  the  common  law  of  England. 


REVOLUTIONARY  BILLS  OF  RIGHTS.     35 

express  pecuniary  exemption  for  such  as  are  con- 
scientiously scrupulous  of  bearing  arms.  That  fre- 
quent recurrence  to  fundamental  principles  which 
Virginia  enjoins  is  reinforced  by  a  hortatory  sentence 
which  does  not  add  dignity  to  the  article.  In  the 
fifteenth  and  sixteenth  Pennsylvania  articles  are 
found  new  maxims  which  embody  floating  ideas  of 
the  Revolution.  The  former  claims  for  all  mankind 
the  "natural  inherent  right"  of  going  from  one  State 
to  another,  and  forming  new  States  in  vacant  coun- 
tries, —  an  idea  which  we  have  seen  suggested  through 
royal  favor  in  some  early  charters,  ^  though  not  even 
here  stretched  so  far  as  to  claim  expatriation  and  the 
renouncement  of  allegiance  as  a  natural  right  of  indi- 
viduals. The  latter  and  the  unique  article  claims 
the  inherent  right  of  the  people  "to  assemble  to- 
gether, to  consult  for  their  common  good,"  and  to 
instruct  and  petition  the  Legislature  for  redress  of 
grievances.  This  "right  of  petition "  maxim  is  the 
great  glory  of  the  Pennsylvania  "  Bill  of  Rights " 
which  seems  to  have  formulated  it  first  for  the  fun- 
damental law  of  free  America.^  The  suicide  and 
deodand  clause  from  Penn's  Charter  of  Privileges  ^  is 
here  overlooked,  but  revolutionary  New  Jersey  (and 
perhaps  Delaware)  adopted  it,  and  it  reappeared  in 
the  Pennsylvania  constitution  of  1790. 

In  the  framework  proper  of  this  Pennsylvania  con- 
stitution occur  various  other  provisions  of  a  "bill  of 
rights  "  character,  — a  primary  instance  of  the  uncer- 

1  See  page  25. 

2  This  excellent  clause,  since  so  widely  copied  into  American  con- 
stitutions, lias  a  germ  in  tlie  English  Bill  of  Rights  (Right  5  as  to 
petitioning  the  King).  But  this  Pennsylvania  expression  gives  the 
maxim  its  fitter  and  more  popular  scope.  Yet  the  idea  was  not  new 
in  these  colonies ;  for  in  the  Massachusetts  "  Body  of  Liberties  "(1641), 
in  broad,  though  less  forcible  language,  appears  {No.  12)  an  assertion 
of  the  right  of  petition. 

3  See  page  13. 


36  CONSTITUTIONAL   STUDIES. 

tainty  in  classifying  such  political  maxims.  Excessive 
bail  and  immoderate  fines  are  there  proliibited ;  ^ 
printing-presses  are  declared  free  to  examine  the 
proceedings  of  the  Legislature ;  public  offices  of  profit 
are  pronounced  not  useful,  though  reasonable  com- 
pensation may  be  allowed  men  called  into  the  public 
service;  entails  and  perpetuities  are  discouraged; 
penal  laws  are  to  be  reformed,  and  punishments  made 
less  sanguinary  and  more  proportionate  to  the  crimes. 
So,  too,  imprisonment  for  debt  after  the  debtor  has 
surrendered  all  his  property  is  thus  early  denounced; 
and  yet  crimes  not  capital  are  to  be  punished  by  hard 
labor  for  the  public  benefit,  and  the  public  moreover 
shall  be  admitted  to  see  the  prisoners  at  work.  By 
way  of  general  homily  we  further  find  in  Pennsyl- 
vania's first  constitution  liberality  enjoined  towards 
foreigners ;  law  and  good  reason  required  for  laying 
taxes ;  ^  private  liberty  granted  to  fowl  and  hunt  in 
seasonable  times  and  to  fish  "in  all  boatable  waters;  " 
and  finally  the  pious  encouragement  of  virtue  and 
the  prevention  of  vice  and  innnorality.^ 

Maryland's  "  Bill  of  Rights,"  once  more,  formulated 
early  for  the  old  thirteen  States  these  maxims  of  lib- 
ertj.  The  convention  which  framed  the  first  consti- 
tution of  Maryland  sat  at  Annapolis  from  August  14 
to  November  11, 1776.  The  "  Declaration  of  Rights  " 
for  that  instrument,  which,  together  with  the  constitu- 
tion, passed  in  convention  on  the  14th  of  August,  con- 
sisted of  forty-two  articles,  and  covered  more  ground 
than  Virginia  and  Pennsylvania  had  already  occu- 
pied, employing  its  own  energetic  paraphrase.^     All 

^  See  supra,  page  33. 

2  No  taxatiou  except  by  Parliament.  English  Bill  of  Rights,  No.  4 ; 
aud  see  supra,  page  17. 

^  Pennsylvania  constitution  of  1776.     Poore's  Constitutions. 

*  Here,  too,  the  "  riglit  of  petition  "  is  asserted,  in  different  language 
from  that  of  Pennsylvania. 


REVOLUTIONARY  BILLS   OF  RIGHTS.      37 

government,  this  Declaration  asserted,  originates  of 
right  from  the  people,  "is  founded  in  compact  only,"  ^ 
and  is  instituted  simply  for  the  good  of  the  whole. 
Sole  right  to  their  internal  government  is  claimed  for 
the  people  of  Maryland,  — a  States'  rights  caveat^  — 
together  with  an  inheritance  of  the  English  common 
law  with  its  trial  by  jury,  and  all  local  grants  derived 
under  the  Calvert  charter.  The  doctrine  of  non- 
resistance  against  arbitrary  oppression  is  denounced 
as  "  absurd,  slavish,  and  destructive  of  the  good  and 
happiness  of  mankind."  Especial  confidence  is  re- 
posed in  a  legislative  body  as  "  the  best  security  of 
liberty  and  the  foundation  of  all  free  government.  "^ 
And  besides  frequently  assembling,  the  Legislature 
should  meet  at  some  fixed  place  unless  some  special 
necessity  prevents.  Some  vigorous  idiosyncrasies 
are  observable  in  this  Maryland  instrument,  such 
perhaps  as  the  headstrong  Samuel  Chase,  a  signer  of 
the  Declaration  of  Independence,  might  have  im- 
pressed upon  the  convention.  Levying  a  poll  tax, 
for  instance,  is  declared  grievous  and  oppressive; 
paupers  should  not  be  assessed  for  support  of  the 
government,  but  every  other  person  should  contribute 
according  to  his  actual  worth. ^  The  Virginian  idea 
of  rotation  in  public  office  for  executive  and  legisla- 
ture *  is  emphasized  by  a  special  argument  for  exempt- 
ing the  judiciary,  while  plural  offices  and  presents 
from    foreign    potentates    are    condemned    besides. 


^  The  same  idea  of  "  compact "  is  suggested  in  New  Jersey's  Revo- 
lutionary constitution  of  July  2,  1776. 

2  Most  of  our  later  State  constitutions  appear,  upon  experience,  less 
disposed  to  implicit  confidence  in  this  branch  of  government. 

^  The  disposition  thus  early  to  dogmatize  upon  taxation  has  char- 
acterized Maryland  constitutions  to  this  day;  and  some  of  our  later 
States  show  an  imitative  tendency  on  tliis  subject. 

*  See  Virginia  Declaration  of  Rights,  No.  5;  also  Pennsylvania 
ditto,  No.  6. 


38  CONSTITUTIONAL   STUDIES. 

Among  rights  not  enumerated  in  either  the  Virginia 
or  Pennsylvania  Declaration  are  several  which  Mary- 
land must  have  led  accordingly  in  proclaiming ;  such, 
more  especially,  as  freedom  of  speech  in  the  Legisla- 
ture, ^  frequent  sessions  of  that  body,  the  prohibition 
of  ex  post  facto  laws,  of  bills  of  attainder,  and  of 
forfeiture  for  crime,  ^  the  exemption  of  civilians  from 
martial  law,  and  a  prohibition  of  all  monopolies  and 
titles  of  nobility.^ 

Three  contiguous  States  — ■  Virginia,  Pennsylvania, 
and  Maryland  —  are  thus  seen  setting  for  the  Ameri- 
can Union  the  first  example  of  concrete  expression  in 
axioms  vital  to  civil  liberty.  Not  perhaps  that  they 
originated,  but  that  at  least  they  first  formulated  in 
convention  truths  which  these  colonists  held  certainly 
dear  when  the  struggle  for  independence  began,  and 
yet  had  never  before  reduced  to  written  fundamental 
law  in  the  name  of  the  people.  Proceeding  south- 
ward, we  next  find  North  Carolina  adopting  a  "  Dec- 
laration of  Rights  "  together  with  its  own  framework 
of  government,  on  the  18th  of  December,  1776, — a 
Declaration  which,  though  tersely  and  tastefully 
composed,  drew  its  inspiration  plainly  from  these 
earlier  conventions,  adding  nothing  original.  As  for 
South  Carolina,  impetuous  and  liasty,  three  constitu- 
tions were  instituted,  one  after  anotlier,  between  1776 
and  1790,  of  which  the  two  earliest  (in  1776  and 
1778)  were  simply  framed  and  put  forth  by  the  Legis- 
lature, regardless  of  convention  methods,  and  hence 
must  liave  been  void  in  any  sense  of  fundamental 
obligation,  as  the  judiciary  of  that  State  presently 
decided.     In  neither  of  those  two  enactments  do  we 

1  Originating  in  English  Bill  of  Rights  (1G89),  No.  9. 

2  Vaguely  stated  as  to  forfeitaros. 

^  See  Maryland  constitntiou  of  177G;  Poore's  Couslitutious. 


REVOLUTIONARY  BILLS   OF  RIGHTS.      39 

find  a  regular  Declaration  of  Riglits  attempted, 
though  that  of  1778  embodied  at  haphazard  a  few 
appropriate  maxims.^  Georgia,  in  1777,  prepared 
its  own  whirlwind  constitution  in  convention;  and 
this  was  superseded  in  1789,  after  the  Federal  consti- 
tution had  been  ratified  by  the  requisite  number  of 
States,  though  before  it  went  into  operation.  In 
both  of  Georgia's  constitutions  are  to  be  found  a  few 
salutary  provisions  from  the  early  Declarations  we 
have  described,  but  no  distinctive  "Bill  of  Rights." ^ 
As  for  States  to  the  northward,  the  fundamental 
law  of  New  York  contained  no  express  "Bill  of 
Rights,". —  a  fact  which  Hamilton  is  seen  to  adduce 
in  defending  the  corresponding  omission  from  our 
Federal  instrument.^  New  York's  Revolutionary 
constitution,  framed  by  convention  in  1776,  but  not 
adopted  until  April,  1777,  embodied,  however,  the 
Declaration  of  Independence,  and  denounced  "the 
many  tyrannical  and  oppressive  usurpations  of 
the  King  and  Parliament  of  Great  Britain;"  and 
mingled  with  the  framework  of  that  fiery  instrument 
we  find  some  of  tlie  recitals  suitable  to  a  Bill  of 
Rights.  No  attainder,  it  was  proclaimed,  should 
work  corruption  of  blood ;  and  yet  bills  of  attainder 
for  that  State  were  prohibited  only  after  the  pres- 
ent war  should  end.*  New  Jereey's  constitution 
of  1776,  secretl}^  framed  and  hurriedly  put  forth 
almost  simultaneously  wath  our  Declaration  of  Inde- 
pendence, uses  the  word  "Colony,"  for  which  the 
New  Jersey  Legislature  in  1777  substituted  "State." 
Such  "  Bill  of  Rights  "  expressions  as  that  instrument 

1  Poore's  Constitutions,  South  Carolina. 

2  lb.,  Georgia. 

3  See  Federalist,  No.  84. 

*  Under  an  attainder  act  of  1779,  tlie  New  York  Legislature  ban- 
ished fifty-eight  persons  (three  of  whom  were  women)  for  adhering  to 
the  enemy.     Poore's  Constitutions,  New  York,  1777,  notes. 


40  CONSTITUTIONAL  STUDIES. 

contained  originated  in  Penn's  old  charter  of  1701, 
which  probably  had  diffused  its  influence  in  colonial 
times. ^  What  l^ill  of  Rights  Delaware  may  have 
adopted  when  assuming  this  full  and  formal  title 
under  her  constitution  of  September,  1776,  is  uncer- 
tain; but  an  impressive  article  of  that  constitution 
forbade  all  importation  of  African  slaves  into  the 
State. 2  For  while  the  pulse  of  Revolution  beat 
highest,  freedom  had  strong  headway. 

The  New  England  colonies  did  not  readily  accept 
Southern  lead  in  formulating  individual  rights ;  yet  the 
popular  sentiment  favorable  to  such  announcements 
seems  to  have  compelled  the  public  leadere  in  most 
quarters  to  defer  to  their  wishes.  Connecticut  and 
Rhode  Island  sanctioned  their  several  charters  from 
Charles  II.  as  good  and  sufficient  organic  law  for  a 
sovereign  State ;  and  the  General  Court  of  Connecti- 
cut, while  legislating  in  177G  to  that  effect,  promised 
expressly  not  to  deprive  the  citizen  of  sundry  Magna 
Gharta  rights  "  unless  clearly  warranted  by  the  laws 
of  this  State."  In  Massachusetts  and  New  Hamp- 
shire the  people  wrought  out  their  will  much  more 
effectually.  Massachusetts,  during  this  Revolution- 
ary period,  was  for  a  while  governed  under  its 
colonial  charter,  adapted  as  might  be  to  the  emer- 
gency; but  the  people  of  the  State  clamored  for  a 
constitution,  and  the  General  Court  accordingl}'  sub- 
mitted one  in  1778,  which  was  voted  down  at  the 
polls,  chiefly  because  it  contained  no  Declaration  of 
Rights.     The  sense  of  the  voters  having  been  taken 

1  See  Poore's  Constitutions,  New  Jersey. 

2  The  constitution,  inclusive  of  this  clause,  was  superseded  later. 
See  Poore's  Constitutions,  Delaware.  Mr.  Poore  prints  no  Delaware 
"Bill  of  Rights;"  but  §  30  of  the  printed  constitution  (177C)  shows 
that  there  must  have  been  oue. 


REVOLUTIONARY  BILLS  OF  RIGHTS.      41 

once  more  in  1779,  a  formal  State  convention  was 
held,  whose  labors  produced  in  1780  a  new  and  com- 
plete charter  of  government;  that  charter  was  sub- 
mitted to  the  people,  and  adopted  as  satisfactorj^  by 
an  immense  majority.^  Of  this  written  constitution, 
never  since  superseded  though  greatly  amended  in 
the  course  of  a  century  or  more,  we  shall  speak  here- 
after concerning  its  practical  distribution  of  powers ; 
but  here  let  us  observe,  as  to  the  Declaration  of 
Rights  which  it  embodied,  that  in  more  florid  and 
sonorous  language  popular  rights  were  proclaimed 
substantially  the  same  that  Virginia,  Pennsylvania, 
and  Maryland,  one  or  another,  are  seen  to  have  put 
forth  nearly  four  years  earlier.  With  greater  insist- 
ence upon  public  authority  and  discipline,  the  Mas- 
sachusetts instrument  employs  largely  the  word 
"subject "in  preference  to  "men,"  "freemen,"  or  the 
"people."  The  preamble  of  this  Massachusetts  con- 
stitution, which  was  the  most  perfect  and  deliberately 
drawn  of  all  State  constitutions  during  our  Revolu- 
tionary period,  asserts  that  the  end  of  all  government 
is  the  benefit  of  the  body  politic ;  and  that  the  body 
politic  is  the  voluntary  association  of  individuals,  — 
a  "  social  compact  by  which  the  whole  people  cove- 
nants with  each  citizen,  and  each  citizen  with  the 
whole  people,  that  all  shall  be  governed  by  certain 
laws  for  the  common  good."^     With  an  enlightened 

1  It  is  said  tliat  the  Massachiisetts  constitution  was  largely  the 
product  and  inspiration  of  John  Adams.  However  this  may  be,  as  to 
an  informal  draft,  Adams  was  abroad  on  the  diplomatic  service  most 
of  the  time  that  this  Massachusetts  convention  was  in  actual  session. 

2  Poore's  Constitutions,  Massachusetts.  See  Maryland  Declaration 
(§  1)  here  amplified.  The  "Mayflower  charter"  of  the  Pilgrims  may 
recur  to  memory  in  such  a  connection. 

One  important,  and  apparently  the  most  important,  maxim  of  a 
"Bill  of  Rights"  character  which  Massachusetts  originated  in  this 
constitution,  consists  in  enlarging  the  Virginia  Declaration  (§6)  that 
one  cannot  be  deprived  of  property  for  public  uses  without  his  consent 


42  CONSTITUTIONAL  STUDIES. 

regard  for  public  beneficence,  this  State  constitution, 
abounding  as  it  does  in  homily  as  well  as  sound  doc- 
trine, commends  the  encouragement  of  literature  and 
the  sciences,  public  schools  and  education,  agricul- 
ture, trade,  commerce,  manufactures,  together  with 
the  promotion  of  humanity  and  general  benevolence, 
industry  and  frugality,  sincerity  and  good  humor, 
"and  all  social  affections  and  general  sentiments, 
among  the  people." ^ 

New  Hampshire  pursued  a  similar  experience  in 
this  Revolutionary  era ;  its  chosen  convention  submit- 
ting in  1778  a  fundamental  constitution  which  the 
people  at  their  town  meetings  the  next  year  rejected. 
Here,  as  under  the  Revolutionar}-  constitution  of 
1776  (which  was  a  brief  business-like  instrument),  all 
Declaration  of  Rights  was  ignored,  and  the  people 
grew  greatly  dissatisfied.  Finally,  by  1783  a  State 
constitution,  modelled  closely  upon  that  of  Massa- 
chusetts, was  framed  in  convention,  and  in  1784 
(just  after  the  end  of  the  Revolutionary  War)  adopted 
by  town  meetings.  With  less  redundancy  perhaps 
of  expression,  the  IMassachusetts  general  truths  appear 
formulated  in  this  later  State  instrument.  But  as 
to  jury  trials,  New  Hampshire  adds  the  cautious 
expression  that  none  but  qualified  persons  should 
serve,  and  that  they  should  be  properly  paid.  Next 
theorizing,  in  imitation  of  Pennsylvania  upon  the 
evil  of  sanguinary  laws,  this  State  suggests  further 
that  the  true  design  of  all  punishments  is  "  to  reform, 
not  to  exterminate,  mankind."  And,  once  more, 
\\\i\\Q  discouraging  pensions,  the  New  Hampshire 
instrument    quaintly  suggests   that  economy   is   "a 

or  that  of  the  Legislature.  To  this  idea  the  Massachusetts  Declaration 
adds  (§  10),  that  private  property  applied  to  public  uses  shall  always 
he  upon  "reasonable  compensation."  Cf.  Coustitutiou  of  United 
States,  5th  ameudment. 

1  Poore's  Constitutions,  Massachusetts. 


REVOLUTIONARY  BILLS   OF  RIGHTS.     43 

most  essential  virtue  in  all   States,   especially  in  a 
young  one."^ 

Religious  liberty  under  these  Revolutionary  Bills 
of  Rights  may  claim  a  passing  mention.  Virginia 
set  forth  a  rule  of  toleration  broad  enough  for  all 
time:  "Religion,  or  the  duty  which  we  owe  to  our 
Creator,  and  the  manner  of  discharging  it,  can  be 
directed  only  by  reason  and  conviction,  not  by  force 
or  violence ;  and  therefore  all  men  are  equally  entitled 
to  the  free  exercise  of  religion,  according  to  the  dic- 
tates of  conscience ;  and  it  is  the  mutual  duty  of  all 
to  practise  Christian  forbearance,  love,  and  charity 
towards  each  other.  "^  Pennsylvania's  fundamental 
precept  concerning  religion  was  worthy  of  a  State 
whose  colonial  history  breathed  the  best  spirit  of 
philanthropy.  North  Carolina,  too,  clearly  pro- 
nounced for  the  "unalienable  right"  to  worship  God 
according  to  the  dictates  of  conscience.  But  the 
Maryland  Declaration  of  Rights  used  compromising 
language  on  this  subject,  and  while  conceding  the 
right  of  any  and  all  inhabitants  to  worship  without 
molesting  others,  favored  religious  taxation,  with  a 
disposition  to  keep  the  Church  of  England  foremost. 
The  Bible  and  the  Christian  religion  continued, 
there  and  generally  elsewhere,  a  test  for  civil  office ; 
while  Delaware,  though  fairJy  tolerating  religious 
worship,  required  a  clear  profession  of  belief  in  the 
Trinity  for  the  civil  service.  In  general,  there  was 
no  religious  test  for  mere  voters. 

1  Poore's  Constitutions,  New  Hampshire. 

2  Virginia  Bill  of  Rights  (No.  16).  Broad  and  generous  as  this 
expression  undoubtedly  was,  Virginia  still  taxed  dissenters  for  the  sup- 
port of  an  English  church  establishment ;  nor  was  it  until  after  the 
general  peace  of  1783  that  Jefferson's  bill  for  religious  freedom  passed 
the  Virginia  Legislature  against  a  powerful  and  highly  intelligent  op- 
position, and  disestablishment  became  practical. 


44  CONSTITUTIONAL   STUDIES. 

In  a  long  and  diffuse  exposition  of  religious  charity, 
South  Carolina's  constitution  of  1778  held  fast  to 
Christian  Protestantism  for  an  established  religion, 
and  defined  the  limits  of  public  toleration.  Both  of 
Georgia's  constitutions  (1777  and  1789)  are  seen  to 
provide  for  the  free  exercise  of  religion,  at  the  same 
time  forbidding  clergymen  to  hold  political  office. 
The  New  York  constitution  of  1777  was  of  much  the 
same  xiurport ;  1  and  Virginia,  New  York,  Delaware, 
and  the  Carolinas  all  manifested  thus  early  that 
repugnance  for  clerical  politicians  which  we  see  to 
this  day  exhibited  in  the  fundamental  law  of  so  many 
American  States.  New  Jersey,  though  avowedly 
tolerant,  confined  civil  privileges  to  Protestants. 
Finally,  the  Massachusetts  constitution,  copied  in  this 
respect  by  New  Hampshire,  Avhile  conceding  to  every 
one  the  right  to  worship  without  molestation  provided 
he  does  not  disturb  or  obstruct  others  (a  favorite 
qualification  of  religious  freedom),  enjoined  the  gen- 
eral right  and  duty  to  worship  the  Supreme  Being ; 
and  town  taxation  was  further  sanctioned  to  support 
"Protestant  teachers  of  piety,  religion,  and  morality," 
at  whose  stated  instructions  attendance  might  be 
compelled.  2  Parish  congregational  churches  sup- 
ported by  local  taxation,  and  a  congregational  clergy 
of  great  learning  and  influential  in  all  public  affairs, 
comprised  the  usual  religious  establishment  of  this 
era  in  New  England;  nor,  indeed,  did  the  legal 
equality  of  sects  and  a  voluntary  and  self-supporting 
system  of  religion  become  the  practice  of  the  United 
States  until  this  nineteenth  century  had  run  the  first 
quarter  of  its  course. 

1  Not,  however,  so  that  liberty  shall  become  license  or  justify  public 
disturbance. 

2  See  Poore's  Constitutions,  passim. 


IV. 

EARLY  STATE  CONSTITUTIONS. 

1776-1789. 

Let  us  now  consider  the  main  structure  of  repub- 
lican government  comprised  in  those  separate  State 
instruments  which  preceded  in  date  our  Federal  con- 
stitution. First  and  foremost  in  the  design  is  seen 
that  fundamental  threefold  division  of  legislature, 
executive,  and  judiciary,  as  departments  which  Mon- 
tesquieu first  of  the  modern  sages  announced  should 
be  kept  distinct  and  separated.  ^  This  Montesquieu 
theorem  appears  and  reappears  in  our  American  State 
constitutions,  onward  from  the  Revolutionary  period: 
sometimes  concisely  stated  as  in  Virginia's  Bill  of 
Rights,  2  and  again  couched  in  the  stately  and  resonant 
expression  of  the  Massachusetts  constitution.  ^  But 
most  political  dogmas  are  of  imperfect  application; 

1  "The  celebrated  Montesquieu  is  the  oracle  always  consulted  and 
cited  on  this  subject."  Federalist,  No.  47.  Yet  Aristotle  in  his  "  Poli- 
tics," centuries  earlier,  distinctly  defined  the  thi-ee  appropriate  depart- 
ments of  a  Eepublic  as  the  deliberative,  executive,  and  judicial,  —  a 
description  imperfect  only  because  legislation  in  a  representative  in- 
stead of  collective  assembly  (which  is  a  modern  contrivance)  had  not 
then  been  invented. 

2  Virginia  Declaration,  1776  (No.  5) ;  somewhat  amplified,  however, 
in  the  Virginia  constitution. 

3  "  The  legislative  department  shall  never  Exercise  the  executive 
and  judicial  powers,  or  either  of  them  ;  the  executive  shall  never  exer- 
cise the  legislative  and  judicial  powers,  or  either  of  them;  the  judicial 
shall  never  exercise  the  legislative  and  executive  powers,  or  either  of 
them ;  to  the  end  it  may  be  a  government  of  laws  and  not  of  men." 
Massachusetts  Declaration  of  1780  (No.  30). 


46  CONSTITUTIONAL  STUDIES. 

and  the  practice  of  American  government  lias  con- 
stantly been  to  so  far  connect  and  blend  tliese  sepa- 
rate departments  of  a  rexDublic  as  to  enable  each  to 
exert  a  certain  constitutional  constraint  upon  the 
others,  so  as  to  unify  authority.  Nor,  as  Madison 
once  suggested,  does  any  mere  parclmient  demarca- 
tion of  constitutional  limits  warrant  against  encroach- 
ment and  tyrannical  concentration  of  power  where 
the  governed  fail  in  vigilance.  ^  The  British  consti- 
tution, admired  by  Montesquieu  like  an  Iliad  among 
the  epics,  was  defective  in  its  separation  of  powers 
during  our  colonial  period,  and  so  were  the  constitu- 
tions of  our  original  thirteen  States,  each  of  whom 
had  nourished  colonial  traditions  which  influenced  her 
new  and  independent  condition. 

New  constitutions  during  this  memorable  war  for 
independence  transform  thirteen  dependent  colonies 
into  Republics.  Virginia  and  Massachusetts  charac- 
terize with  dignity  this  new  establishment  as  a  "  Com- 
monwealth;" Pennsylvania,  quite  ambiguously,  as 
a  "Commonwealth  or  State;"  the  other  ten  as  a 
"State."  For  times  thus  early  the  "convention," 
composed,  like  any  legislature,  of  chosen  representa- 
tives of  the  people,  was  the  great  and  sufficient  origi- 
nator and  sanction  of  government  and  fundamental 
law.  A  de  facto  legislature,  to  be  sure,  would  natu- 
rally summon  such  a  convention,  and  even  determine 
upon  the  basis  for  choosing  its  members ;  and  if  that 
legislative  sanction  had  been  wanting  at  the  outset, 
its  subsequent  sanction  might  be  given  afterwards  to 
the  convention  product.  Indeed,  the  de  facto  legisla- 
ture of  certain  revolted  colonies,  in  1776,  that  peril- 
ous year  of  united  defiance,  had  gone  much  farther. 
It  had  in  Connecticut  (and  probably  too  in  Rhode 
Island)  given  the  colonial  charter  a  prolonged  and 

1  Federalist,  No.  48. 


EARLT  STATE  CONSTITUTIONS.  47 

indefinite  survival ;  in  Massachusetts  and  New  Hamp- 
shire it  liad  exerted  a  temporary  sway;  in  South 
Carolina  it  had  even  assumed  authority  to  impose  a 
binding  constitution  upon  the  people,  —  an  offence 
repeated  in  1778.  But  Virginia  had  set  the  example, 
soon  universally  conceded  in  these  States,  of  calling  a 
convention,  as  a  fresh  and  immediate  emanation  from 
the  people.  Each  popular  constituency  chose  its 
own  delegates,  and  such  a  convention  revolutionized 
political  society  at  its  own  omnipotent  discretion. 

At  the  present  day,  the  United  States  of  America 
regard  a  constitution  and  convention  work  as  a 
product  properly  submitted  to  the  voters  for  their 
express  adoption  before  it  can  become  fundamental 
law.  But,  save  for  Massachusetts  and  New  Hamp- 
shire alone,  such  was  not  the  implied  fundamental 
requirement  of  these  earlier  times.  In  those  two 
States,  where  the  referendum  in  this  respect  may  be 
said  to  have  originated  for  America,  the  voters  in 
town  meetings  are  seen  discussing  at  the  outset  the 
rightful  fundaments  of  constitutional  government, 
and  not  only  sending  representatives  to  a  State  con- 
vention, but  rejecting  convention  results  which  they 
deem  imperfect,  and  procuring  a  new  convention; 
deciding  at  length  by  their  final  suffrage,  as  a  body 
politic,  to  ratify  the  later  framework  as  sufficient  and 
satisfactory  to  live  under.  Elsewhere,  however, 
among  those  thirteen  Revolutionary  States  that 
wrought  out  American  independence  in  unison  we 
find  no  such  popular  test  of  adoption  or  ratification ; 
but  under  the  most  favorable  conditions  for  popular 
expression  what  the  convention  once  deliberately 
concludes  upon  becomes  the  fundamental  scheme  of 
government  for  that  jurisdiction,  the  fundamental 
declaration  of  individual  rights.     When  by  1787  and 


48  CONSTITUTIONAL  STUDIES. 

after  a  treaty  of  peace,  came  further  the  Phihidelphia 
general  convention  and  its  plan  of  a  more  perfect 
Union  of  these  States,  no  popular  sanction  of  that 
plan  more  direct  was  sought  or  obtained  (next  to  that 
of  the  Continental  Congress)  than  the  approval  of  a 
State  convention.  In  short,  whether  for  State  or 
Federal  fundamental  law,  the  convention,  except  as 
above  stated,  was  throughout  this  Union  its  own  self- 
sufficient  sanction  and  exponent  of  that  popular  will 
in  a  community  wliich  alters,  subverts,  and  erects 
anew. 

The  absence,  as  a  rule,  of  all  referendum  test  at 
this  period  is  further  established  when  we  look  into 
these  earliest  of  our  written  constitutions  to  ascertain 
how  they  could  be  superseded  or  amended.  Upon 
this  vital  point  half  of  these  constitutions,  Virginia's 
included,  were  silent,  and  yet  every  one  of  them 
became  in  time  supplanted.  This  was  not  because 
those  Revolutionary  sires,  illustrious  in  constructive 
statesmanship,  who  devoted  their  best  talents  to  such 
work,  were  fatuous  enough  to  suppose  that  alterations 
of  fundamental  law  would  never  be  needed;  but 
because  they  reposed  uj^on  their  own  primary  truth, 
announced  repeatedly  in  Bills  of  Rights,  that  the 
people  might  amend,  repeal,  or  substitute,  at  an}^ 
time  later,  —  namely,  in  convention.  American 
experience,  however,  has  taught  that  it  is  better 
for  a  written  constitution  to  be  explicit  in  such 
matters;  and  in  some  of  these  early  constitutions, 
that  course,  in  fact,  was  pursued.  Thus,  Pennsyl- 
vania's instrument  of  1776  created  a  "Council  of 
Censors  "  from  the  people  for  every  seventh  year, 
who  should  inquire  into  constitutional  infractions 
and  abuses,  and  upon  a  two-thirds  vote  summon  at 
discretion  a  new  convention,  —  a  fortunate  clause, 
which  enabled  that  immense  State  to  throw  off  readily 


EARLY  STATE   CONSTITUTIONS.  49 

in  1790  its  badly  devised  original  scheme  of  self- 
government,  and  substitute  something  more  sensible. 
Georgia,  too,  in  her  constitution  of  1777,  directed 
the  Legislature  to  call  a  new  convention  upon  the 
petition  at  any  time  of  a  majority  of  voters  in  each 
county ;  and  this  provision,  too,  resulted  by  1789  in 
a  new  and  better  framework  of  practical  State  gov- 
ernment.^ Both  Massachusetts  and  New  Hampshire 
expressly  accorded  a  probationary  period  to  their 
slowly  matured  constitutions;  and  in  consequence 
the  latter  State,  at  the  end  of  seven  years,  framed  in 
convention  a  new  fundamental  instrument,  while  the 
former  continued  beyond  her  experimental  term  as 
before.  Some  of  these  Revolutionary  conventions  — 
those  of  Pennsjdvania,  Delaware,  and  North  Carolina, 
for  instance  '^  —  are  seen  setting  the  example  of  declar- 
ing certain  fundamental  law  irrepealable,  which 
practice  might  suggest  a  discussion  still  deeper  as  to 
the  inherent  right  of  ancestors  in  general  to  bind 
their  descendants  and  successors.^  Pennsylvania's 
constitution  of  1777  expressly  forbade  the  Legislature 
to  amend  or  infringe,  which  doubtless  was  appropriate 
enough. 

For  simple  amendment  to  the  constitution  a  remedy 
less  drastic  than  calling  a  new  convention  is  found 
prescribed  (a  remedy  now  universal)  in  several  of 
these  early  States.  Thus  Maryland,  in  her  consti- 
tution of  177G,  put  forward  a  plan  of  amendment, 
by  which  one  legislature  might  initiate  and  the  next 
legislature  confirm  a  proposed  alteration  so  as  to  give 

1  Georgia's  constitution  of  1788  was  framed  in  one  convention,  and 
then  ratified  in  1789  by  a  new  convention  chosen  quite  curiously  for 
the  express  purpose  of  accepting  or  rejecting.  Poore's  Constitutions, 
Georgia,  note. 

2  And  see  supra,  page  I.3. 

3  Such  provisions  fortunately  relate  for  the  most  part  to  funda- 
mental rights  of  the  individual,  which  deserve  to  remain  permanent. 

4 


50  CONSTITUTIONAL   STUDIES. 

it  full  effect,^  —  a  favorite  method  of  these  later 
times,  though  with  the  more  democratic  addition  that 
the  amendment  shall  bear  the  final  test  of  a  submis- 
sion to  the  votere. 

The  elective  franchise  under  our  early  State  consti- 
tutions was  bestowed  with  more  or  less  favor,  ac- 
cording mainly  to  colonial  practice  and  sentiment. 
Colonies  such  as  Rhode  Island,  Connecticut,  Pennsyl- 
vania, and  Maryland  had  been  treated  by  British 
sovereigns  with  marked  liberality  in  this  respect.  In 
general  the  voter  was  to  be  a  male  inhabitant, 
twenty-one  years  of  age  or  more;  and  "freemen"  or 
"  free  white  men  "  was  a  convenient  term  to  employ 
thus  in  the  written  systems  of  States,  nearly  all  of 
whom  still  recognized  to  some  extent,  in  1776,  the 
colonial  institution  of  negro  slavery.  "  Freeholders," 
or  real-estate  owners,  were  specially  designated  for 
the  suffrage  in  South  Carolina,  and  further  in 
Virginia,  New  York,  and  North  Carolina,  as  to  cer- 
tain privileged  elections  at  least;  INIassachusetts,  as 
under  her  royal  charter,  and  Maryland,  fixed  a  prop- 
erty qualification  in  either  lands  or  personalty;  while 
the  most  liberal  of  thoso  United  States,  like  Pennsyl- 
vania and  Georgia,  conferred  the  suffrage  upon  all 
tax-payere.2  Georgia,  in  her  earliest  constitution, 
made  a  futile  effort,  as  some  colonial  legislatures 
had  done,  to  punish  a  voter's  absence  from  the  polls 
without  good  excuse  by  imposing  a  penalty.  Bribery 
at  the  polls  was  punisliable  under  Pennsjdvania's 
constitution,   yet  rather  lightly.^ 

1  For  certain  chauges,  a  two-thirds  vote  was  a  pro-roqnisite ;  other- 
wise a  majority  was  snfTicicnt.     Maryland  constitution  (177G),  §  59. 

2  Sons  of  frcohohlers,  tlion,£(li  i.ot  paying  taxes,  liad  also  the  riglit 
to  vote  in  Teniisylvania.     Georgia  favored  mechanics. 

3  New  Hanijishire's  constitution  (1784)  makes  conviction  of  bribery 
an  utter  disqualification  froni  oflice,  etc 

Under  the  Kevolutionary  constitution  of  New  York,  the  "elector" 


EARLY  STATE   CONSTITUTIONS.  51 

As  for  the  appropriate  method  of  voting,  while  Mas- 
sachusetts, New  Hampshire,  Pemisylvania,  and  Geor- 
gia pronounced  thus  early  for  the  written  ballot,  other 
States  (by  more  or  less  positive  expression)  showed 
some  adhesion  still  to  the  old  English  mode  of  an 
oral  or  viva  voce  vote.^  Indeed,  the  New  York  con- 
stitution of  1777  indicates  a  disposition  to  try  the 
written  ballot  simply  as  a  novel  and  experimental  sub- 
stitute for  the  customary  viva  voce  method  and  sub- 
ject to  the  final  discretion  of  the  legislature;  and 
that  instrument  notes  as  a  prevalent  opinion  "  among 
divers  of  the  good  people "  that  voting  by  ballot 
"  would  tend  more  to  preserve  the  liberty  and  equal 
freedom  of  the  people "  than  the  oral  mode.^ 

The  image  of  State  government  in  America,  with 
its  threefold  distribution  of  fundamental  powei"S,  is 
visible  in  the  public  structure  of  these  thirteen 
colonies,  developing  apart  for  a  century  or  more 
under  the  parental  supervision  of  Great  Britain. 
And  accordingly,  when  filial  ties  were  severed,  the 
omnipotence  of  a  local  legislature  and  local  represen- 
tatives was  the  fact  most  palpable  in  continental  self- 
establishment.  For  the  local  assembly  of  the  people 
had  long  l)een  the  bulwark  and  resource  of  these 
various  colonies  in  concerting  against  parental  oppres- 
sion ;  and  the  election  of  that  representative  assembly 
—  or,  in  other  words,  of  the  single  popular  branch  of 
each  colonial  legislature  —  had  chiefly,  and,  except 
for  Rhode  Island  and  Connecticut,  almost  solely 
occupied   the   franchise  and   immediate  attention  of 

at  the  polls  might  bo  required  to  take  an  oath  of  allegiance  to  the 
State.  Under  that  of  Delaware,  soldiers  were  forbidden  to  approacli 
the  polls  on  election  day. 

1  Connecticut  to  some  extent  kept  up  inva  j'oce  voting  in  State  elec- 
tions,—  a  system  which  town  meetings  natui-ally  favor. 

2  Poore's  Constitutions, /Jass//H,  1776-1784. 


52  CONSTITUTIONAL  STUDIES. 

colonial  voters.  Thus  continued  it  long  after  inde- 
pendence had  been  declared,  in  most  of  those 
struggling  States  which  have  set  the  pattern  for 
this  new  world.  But  thoughtful  statesmen  marked 
quickly  the  tendency  of  republican  governments  to 
aggrandize  the  Legislature  at  the  expense  of  all  other 
departments;  and  the  dangers  of  legislative  abuse 
and  encroachment  were  conspicuously  manifest  in 
Pennsylvania  before  this  first  stage  of  experimental 
self-government  had  run  its  course.  The  closer  to 
the  people  nominally,  the  more  audacious  is  such 
aggression  apt  to  be. 

Since,  however,  a  single  representative  house  had 
borne  in  America  the  sj-mbols  of  popular  confidence 
and  affection  for  so  many  years,  we  find,  not  strangely, 
that  Pennsylvania  and  Georgia,  as  free  republics, 
essayed  at  once  the  plan  of  a  legislature  which 
should  consist  of  a  single  house.  The  experiment 
was  unsatisfactory,  producing  speedily  such  public 
turbulence,  discord,  and  caprice  that  by  the  time 
that  a  Congress  of  the  United  States,  consisting  of 
two  houses,  went  into  national  operation,  both 
Pennsylvania  and  Georgia,  remodelling  completely 
their  State  constitutions,  established  a  corresponding 
change.  As  no  other  State  but  the  new  Vermont 
(strong  admirer  and  copyist  at  the  outset  of  Pennsyl- 
vania's first  constitution)  ever  tried  again  this  one- 
chambered  legislature,  and  that  trial  failed,  though 
with  a  simple  rural  people  most  favorable  for  such  a 
system,  we  may  fairl}-  infer  that  the  friction  of  two 
distinct  and  deliberative  houses,  is  upon  the  whole 
highly  salutary  to  republican  government;  since, 
after  all,  it  is  better  to  continue  under  defective  laws 
than  to  change  them  on  impulse  and  crude  discussion. 

The  larger  and  more  popular  branch  of  the  State 
legislature  came  ready-made  to  independent  America. 


EARLY  STATE   CONSTITUTIONS.  53 

As  for  a  smaller  branch,  the  joinder  in  authority  of 
a  provincial  or  charter  council,  which,  like  a  lesser 
House  of  Lords,  had  exercised  some  sort  of  concur- 
rent authority  in  passing  colonial  laws,  was  readily 
made  over  in  most  of  these  new  States,  so  as  to  serve 
as  an  upper  and  more  aristocratic  House,  secret  in  its 
proceedings  as  formerly  according  to  the  usual  prac- 
tice, and  curbing  the  mettlesome  propensity  of  the 
more  popular  branch.  Massachusetts  in  her  matured 
constitution  (followed  presently  by  New  Hampsliire) 
pursued  a  peculiar  course  in  this  respect;  the  old 
colonial  ''council,"  with  such  executive  functions  as 
pertained  to  it,  was  transferred  to  the  governor,  as 
an  advisory  appendage ;  while  a  Senate  was  specially 
created,  so  that  the  Legislature  might  consist  regu- 
larly of  two  co-ordinate  branches  each  with  a  nega- 
tive on  the  other.  1 

The  popular  branch  of  the  American  legislature 
was  made  tliree  or  four  times  as  numerous  as  the 
other,  with  members  to  be  annually  chosen  on  the 
representative  plan.^  No  such  happy  adjustment  of 
interests  could  be  contrived  in  the  States  for  the  two 
separate  chambers  as  the  Federal  constitution  hit 
upon  later  for  Congress ;  nobility  and  life  tenure  were 
surely  unfit  for  what  freemen  disliked  to  style  an 
upper  House ;  and  yet  with  more  strenuous  qualifica- 
tions of  age  and  property  in  its  membership,  longer 
terms,  and  in  some  States  a  remote  method  of  choice, 
something  approximating  a  conservative  or  even 
aristocratic  second  branch  was  shaped  out.  In  Mas- 
sachusetts and  New  Hampshire,  while  annual  elec- 

1  This  State  "council,"  a  Massachusetts  contrivance  in  so  special 
a  sense,  prevails  to  this  day  in  Massachusetts,  New  Hampshire,  and 
Maine,  but  in  no  other  part  of  the  Union.     See  pages  16,  17. 

2  New  York  (1777)  prescribes  cle.arly  a  census  to  be  taken  every 
seven  years  (after  the  war  ends)  for  reapportioning  the  popular 
branch.     Cf.  Pennsylvania  (1776). 


54  CONSTITUTIONAL  STUDIES. 

tions  for  either  branch  were  insisted  on,  the  Senate 
was  based  upon  public  taxation  or  property,  and  the 
House  upon  polls  or  numbei's.  New  York's  original 
Senate  consisted  simply  of  freeholders  to  be  chosen 
by  the  body  of  freeholders.  The  Maryland  plan,  a 
singular  one,  seems  to  have  foreshadowed  the  elec- 
toral college  scheme  of  1787  for  choosing  a  President 
of  the  United  States,  so  admirable  in  theory  and  yet 
so  contemptible  in  practice ;  for  electors  of  the  Mary- 
land Senate  were  to  be  chosen  every  fifth  year  by  the 
general  voters,  with  power  to  meet  in  mass  at  a 
stated  time  and  place,  and  elect  a  suitable  number 
of  "men  of  the  most  wisdom,  experience,  and 
virtue,"  to  fill  that  dignified  branch  of  the  Legisla- 
ture.^ Classification  was  an  expedient  at  once  applied 
to  the  State  Senate  in  Virginia,  New  York,  and 
Delaware,  as  a  special  means  of  securing  for  that 
body  stability  and  experience;  whence  came  that 
periodical  rotation  of  a  certain  fraction  as  each  legis- 
lature convenes,  whose  most  conspicuous  example  is 
furnished  in  our  United  States  Senate  to  this  day.^ 
For  in  these  earliest  days  of  constitutional  framework 
more  effort  was  shown  to  create  a  positive  basis  of 
difference  between  the  two  houses  of  an  American 
State  legislature,  aside  from  larger  or  smaller  repre- 
sentative areas,  than  political  philosophy  takes  to 
heart  in  this  nineteenth  century. 

"General  Court,"  the  legacy  of  colonial  times,  was 
the  title  retained  in  Massachusetts  and  New  Hamp- 
shire for  this  bicameral  legislature ;  ^  but  "  Assembly  " 
was  the  early  preference  in  most  States  out  of  New 
England.  New  York  at  once  applied  to  its  own 
department  the  modern  term  "Legislature,"  giving 

1  This  Senate  electoral  jilan  lasted  iu  Maryland  until  1837.  Cf. 
Poore's  Constitutions. 

2  Poore,  ib.  *  See  page  17. 


EARLT  STATE   CONSTITUTIONS.  55 

the  name  "Assembly,"  as  also  did  New  Jersey  and 
Delaware,  to  its  popular  branch.  "Assembly"  in 
Pennsylvania  and  Georgia  meant,  however,  in  these 
earlier  years,  a  one-chambered  legislative  bod}^ 
"House  of  Representatives,"  as  a  style  of  the  popular 
branch.  South  Carolina  and  Massachusetts  made  fash- 
ionable; but  "House  of  Delegates"  (no  longer 
"  Burgesses  ")  Virginia  called  it,  seconded  by  Mary- 
land; "House  of  Commons"  was  the  name  first 
given  in  North  Carolina.  "  Senate  "  became  at  once 
in  leading  States  the  favorite  designation  for  the 
smaller  and  more  conservative  branch  of  the  leg- 
islature; but  New  Jersey,  Delaware,  and  South 
Carolina  clung  for  a  few  years  to  the  old  style  of 
"Council."! 

As  for  the  qualifications  of  a  legislator,  under 
these  earliest  constitutions,  if  a  State  required  prop- 
erty or  a  freehold  in  order  that  one  might  vote  at  all, 
mucli  more  was  that  rule  imperative  for  service  in 
the  Legislature,  and  most  of  all  to  the  honorable 
incumbent  of  a  State  Senate.  Freehold  or  property 
qualifications  for  a  legislator  were  in  these  years 
waived  in  Pennsylvania  alone.  Age  and  length  of 
residence  afforded  suitable  tests,  as  they  always  do; 
to  which  were  usually  superadded  religious  quali- 
fications, though  ministers  of  the  gospel,  as  we  have 
seen,  were  in  various  States  excluded  from  politics. 
Pennsjdvania  forbade  public  service  in  its  single 
assembly  for  more  than  four  years  out  of  seven,  and 
required  each  member  to  swear  fidelity  to  the  public 
interests,  besides  taking  oath  of  his  belief  in  God 
and  the  inspiration  of  the  Bible. ^ 

1  See  Poore,  passim  ;  supra,  page  17. 

2  This  legislator's  oath  (rather  an  imlefiuite  one,  after  all)  is  to  the 
effect  that  he  will  not  propose  or  assent  to  any  bill  "which  shall  apjjear 
to  me  injurious  to  the  people,"  nor  consent  to  any  act  or  thing  that 


5G  CONSTITUTIONAL  STUDIES. 

The  first  constitutions  of  Pennsylvania  and  New 
York  severally  ordained  that  each  House  should  sit 
with  open  doors,  except  where  the  public  welfare 
required  secrecy.  And  in  various  States  we  see  old 
Parliamentary  privileges  expressl}^  accorded:  there 
should  be  freedom  of  speech  in  the  Legislature ;  and 
debates  and  proceedings  could  not  be  questioned  else- 
where ;  ^  no  member  ct)uld  be  arrested  or  held  to  trial 
while  going,  attending,  or  returning.^  Each  branch, 
moreover,  should  choose  its  own  officers,  determine 
its  own  rules,  judge  of  the  returns,  elections,  and 
qualifications  of  its  members,  and  at  its  sole  discre- 
tion expel  any  member  for  misbehavior.  Much  of 
this  Parliamentary  law  of  England  had  doubtless 
been  recognized  and  asserted  in  the  several  colonies 
wliile  owning  allegiance  to  the  King.  So,  too,  the 
power  of  brief  adjournment  was  free  to  each  branch, 
but  in  general  the  agreement  of  both  Houses  was 
essential  for  any  considerable  or  final  adjournment; 
and  the  Executive  might  convene  on  an  emergenc)' 
or  prorogue  when  the  two  Houses  were  unable  to 
agree.  Some  of  these  State  constitutions  fixed  the 
requisite  number  for  a  quorum.  Seven  States  ex- 
pressly insisted  that  money  bills  should  originate  in 
the  House,  —  a  provision  natural  enough  while  that 
body  continued  in  a  State  the  only  really  popular 
one. 2     Virginia's  constitution  declared  that  all  bills 

aliall  tend  to  ahri(la;o  their  constitntion.al  privileges ;  lait  that  ho  will 
to  the  hest  of  liis  al)ility  conduct  himself  "as  a  faitliful,  honest  repre- 
sentative and  fifuardiau  of  the  people."  New  Jersej'  prescribed  an  oath 
somewhat  similar,  for  preventing  the  repeal  of  constitutional  provis- 
ions.    See  Poore,  passim. 

1  Supra,  page  38;  and  English  Bill  of  "Rights,  1689  (No.  9). 

2  See  Massachusetts  and  New  llamjishiro  constitutions. 

8  Thus  we  find  the  early  constitutions  of  New  Hampshire,  Massa- 
chusetts, New  Jersey,  Delaware,  Maryland,  Virginia,  and  North  Caro- 
lina expressed  ;  that  of  New  York  being  silent.  Nor  can  the  Senate 
amend,  but  it  must  assent  or  reject.    Virginia  and  North  Carolina. 


EARLY  STATE   CONSTITUTIONS.  57 

must  originate  in  the  popular  branch.  Some  State 
constitutions  are  seen  entering  quite  minutely  into 
other  details  of  legislative  practice  which  elsewhere 
reposed,  no  doubt,  upon  colonial  or  Parliamentary 
usage:  as,  for  instance,  the  consent  of  both  Houses 
should  be  given  to  a  bill;  bills  should  be  read  three 
times  before  final  passage ;  yeas  and  nays  might  be 
entered  on  request;  a  journal  should  be  kept  and  its 
proceedings  periodicall}^  printed;  and  upon  disagree- 
ment there  should  be  a  conference  committee.  South 
Carolina  ordained  that  a  bill  rejected  by  either  House 
should  not  be  brought  up  again  at  the  same  session 
without  special  leave  and  notice.  In  New  Jersey's 
constitution  is  traceable  the  first  clear  suggestion  of 
a  constraint  upon  legislation  which  in  one  way  or 
another  many  constitutions  of  this  nineteenth  century 
employ,  —  that  no  law  shall  finally  pass  except  by 
majorities  of  all  elected  to  each  branch. 

No  enumeration  of  legislative  powers  was  needful 
in  these  primitive  State  constitutions,  inasmuch  as  a 
State  legislature  might  exercise  all  powers  over  the 
domestic,  social,  and  business  relations  of  its  inhabit- 
ants except  such  as  were  expressly  delegated  to  the 
Union  or  clearly  prohibited  otherwise,  which  at  this 
date  of  course  amounted  to  very  little;  yet  various 

The  rule  of  the  English  House  of  Commons  as  to  money  bills  is  said 
to  date  back  nearly  to  1400.  Colonial  ]iractice  doubtless  fortified  this 
rule  for  America. 

Maryland's  constitution  made  special  effort  to  prevent  the  abuse  of 
this  "  money  bill "  origination  in  the  House.  It  forbade  the  House  under 
any  pretence  to  annex  to  or  blend  with  a  money  bill  other  extraneous 
matter ;  and  it  defined  as  a  "  money  bill "  every  bill  assessing  or  apply- 
ing taxes  or  supplies  for  the  support  of  government,  or  the  current 
expenses  of  the  State,  or  appropriating  money  in  the  treasury.  Ko 
bill,  it  states,  is  a  money  bill  which  imposes  duties  or  customs  for  the 
mere  regulation  of  commerce,  or  which  inflicts  fines  or  enforces  the 
execution  of  laws,  though  an  incidental  revenue  might  arise.  Mary- 
land Constitution,  1776,  §  11. 


58  CONSTITUTIONAL  STUDIES. 

special  expressions  of  legislative  authority  are  found 
in  these  early  instruments.  Constraints,  too,  were 
stated,  such  as  a  "  Bill  of  Rights  "  might  specify,  or 
upon  entails,  primogeniture,  and  the  like  encum- 
brances upon  political  equality.  The  "  wages  "  of 
legislators,  as  of  all  civil  officers,  were  commonly 
made  payable  from  the  State  treasury;  but  New 
Hampshire  undertook  the  peculiar  experiment  (soon 
abandoned)  of  making  the  several  towns  pay  their 
representatives,  while  the  State  appropriated  simply 
for  mileage.^ 

The  American  Executive  was  an  inheritance  from 
colonial  subjection ;  and  colonial  experience  fortified 
the  inclination  of  State  Revolutionary  framers  to 
curb  and  constrain  its  deputed  functions.  For  more 
than  tAventy  years  previous,  executive  independence 
had  been  nearly  synonymous  on  this  American  soil 
with  executive  tyranny.  And  yet,  excepting  the 
charter  governments  of  Massachusetts, ^  Rhode  Island, 
and  Connecticut,  the  selection  of  this  American  chief 
magistrate,  dispenser  of  public  honors  and  patronage, 
had  been  so  far  removed  from  the  immediate  choice 
of  the  people,  that  the  leaders  of  these  newly  fledged 
States  dreaded  a  young  democracy. 

"  Governor  "  became  at  once  the  usual  style  of  this 
chief  magistrate,  as  under  the  colonial  dispensation; 
but  Pennsylvania  and  Delaware  in  their  constitu- 
tions  of   1776   called   him    "President."     As  for  a 

^  The  first  Pennsylvania  constitution,  though  liberally  devised, 
ahoundcd  in  loose  and  precatory  lanp^uage,  and  badly  planned  a  frame- 
work of  praclifal  government.  Laws  "for  the  encouragement  of 
virtue  and  prevention  of  vice"  were  to  be  made  and  kept  constantly 
in  force.  And,  l)y  way  of  a  general  clieck  upon  lia.sty  legislation,  it 
provided  quite  ambiguously'  that  bills  of  a  public  nature,  "except  on 
occasions  of  sudden  necessit'/,  shall  not  be  ])asscd  into  laws  until  the 
next  session  of  assembly,"  after  they  arc  read  and  printed. 

2  Before  1691. 


EARLY  STATE   CONSTITUTIONS.  59 

ceremonious  title,  Massachusetts  and  New  Hamp- 
shire dubbed  him  "His  Excellency;"  but  the  other 
States  kept  such  designations  out  of  their  funda- 
mental laAV,  though  Georgia  appears  to  have  bestowed 
the  title  "  Honorable  "  in  1777,  dropping  it  out  of  her 
second  constitution  in  1789.  The  term  of  this 
supreme  executive  was  made  annual  for  the  most 
part.  South  Carolina,  however,  set  the  example  of 
two  years,  while  New  York  and  Delaware  promptly 
fixed  a  three  years'  term. 

The  choice  of  an  American  governor,  as  a  compari- 
son of  these  primitive  constitutions  will  show  us, 
was  confided  originally  to  the  State  Legislature  in 
eight  States  out  of  thirteen,  —  a  preponderance  of 
opinion  all  the  more  remarkable  when  one  recalls 
that  two  out  of  the  other  five,  in  conceding  a  choice 
by  the  people,  merely  suffered  their  own  favored 
charters  to  work  on  as  before.  New  York  took  up 
the  singular  experiment  of  a  choice  by  freeholders 
alone. ^  Wherever  the  Legislature  in  the  preponder- 
ating States  consisted  of  two  houses,  the  ballot  of 
both,  separate  or  concurrent,  was  made  requisite; 
but  Pennsylvania,  with  her  single  house,  invented 
an  odd  method  of  combining  the  Assembly  with 
an  executive  council  on  a  joint  ballot  for  chief 
magistrate.  Here  the  supreme  executive  power  was 
lodged  not  in  an  individual,  but  in  a  sort  of  Directory, 
styled  "President  and  Council;"  the  people  in  their 
respective  districts  chose  this  "  Council "  of  twelve 
after  a  scheme  which  rotated  one-third  of  that  num- 
ber annually ;  and  both  President  and  Vice-President 
of  the  State  had  to  belong  to  this  "  Council "  in  order 
to  be  eligible.  The  last  quarter  of  the  eighteenth 
century  and  the  first  quarter  of  the  nineteenth  com- 

1  The  same  favored  class  whose  right,  as  we  have  seen,  was  to 
choose  State  senators.     Supra,  page  54. 


60  CONSTITUTIONAL  STUDIES. 

prised  the  era  of  strict  "majority  rule  "  in  a  republic. 
In  New  York  alone  among  American  States  was  a 
plurality  choice  (here  by  the  freeholders)  sanctioned 
thus  early ;  while,  on  the  other  hand,  both  in  Massa- 
chusetts and  New  Hampshire,^  the  voters,  by  failing 
at  the  polls  on  one  trial  to  give  some  candidate  for 
governor  the  clear  majority,  threw  the  election  con- 
sequently into  the  Legislature,  which  body  would 
then  proceed,  after  a  prescribed  mode,  to  elect  at 
discretion  from  among  the  highest  candidates. ^  The 
convenience  of  concluding  the  choice,  once  and  for 
all,  in  favor  of  the  person  whose  number  at  the  polls 
was  greatest,  whether  he  had  received  an  actual 
majority  of  the  votes  or  not,  fructified  but  slowly  in 
State  fundamental  law,  and  that,  too,  after  a  rigorous 
experience. 

As  for  qualifications,  our  American  Executive  was 
at  the  outset  required  by  the  majority  of  States  to  be 
a  freeholder  to  a  considerable  amount. ^  But  the 
earliest  instruments  of  Virginia,  Pennsylvania,  New 
Jersey,  and  Delaware,  were  silent  in  this  respect. 
"A  wise  and  discreet  freeholder,"  enjoins  the  New 
York  constitution;  "some  fit  person  within  the 
State,"  says  that  of  New  Jersey;  "a  person  of  wis- 
dom, experience,  and  virtue "  is  the  language  of 
Maryland.     Ripeness  of  age  (as,  for  instance,  twenty- 

1  Semhle  in  Connecticut  and  Rhode  Island,  too,  under  charter  rules. 

2  This  eventual  choice  of  Chief  Executive  by  tlic  Legislature,  on 
failure  of  a  popular  majority,  continues  a  feature  of  the  Federal  cou- 
stitution,  though  almost  obsolete  as  concerns  State  ])ractice.  See  post, 
Part  II.  As  for  members  of  the  Legislature  at  this  period  (and  for 
Congressmen  still  later)  if  no  one  received  a  majority  of  the  votes  for 
representative,  tlie  contest  at  the  polls  was  repeated  until  a  majority 
was  reached. 

8  This  freehold  qualification  of  £1000  under  the  Massachusetts 
constitution  of  1780  was  abolished  but  a  few  years  ago,  and  at  the 
instance  of  Governor  William  E.  Russell.  The  requirement  had  long 
escaped  public  notice. 


EAELY  STATE   CONSTITUTIONS.  61 

five  years)  was  quite  commonly  prescribed;  so,  loo, 
residence  Avilliin  the  State  for  a  certain  length  of 
time;  and  finally  the  Protestant  faith  in  religion. 
Restrictions  upon  re-election  were  a  favorite  precau- 
tion in  most  States  to  the  southward.^ 

A  Lieutenant-Governor  (in  Pennsylvania  a  Vice- 
President)  was  provided  under  various  constitutions, 
agreeably  to  colonial  practice,  while  six  States  ignored 
such  an  office. ^  The  incumbent  served  as  executive 
head  of  the  State  for  great  emergencies.  In  New 
York  he  was  designated  to  preside  over  the  State 
Senate,  giving  his  casting  vote  in  case  of  a  tie,  but 
otherwise  not  voting.  Georgia,  on  the  other  hand, 
named  the  President  of  the  Council  as  next  in  suc- 
cession to  the  Governor;  and  so  too  did  Delaware. 
This  "  Council  "  (styled  sometimes  a  "  Privy  Council," 
or  "  Council  of  State ")  began  in  1776  as  a  great 
encumbrance  upon  executive  independence,  blending 
in  many  instances  the  legislative  functions  of  an  upper 
house.  Tacked  upon  the  chief  magistracy,  this 
Council  would  give  its  "  advice  and  consent "  to  the 
most  important  executive  acts;  while  in  Pennsyl- 
vania it  formed  as  a  pure  Directory  a  constituent 
part  of  the  Executive  itself.  In  the  President  and 
Directors  of  a  private  corporation  to  this  day  we 
trace  the  semblance  of  a  common  charter  origin. 
Members  of  this  Council  were  elected  in  various 
ways  at  State  discretion ;  in  Massachusetts  and  New 

^  One  was  re-ineligible  to  the  office,  e.  7.,  for  four  years  after  serv- 
ing three  in  succession,  ^ee  constitutions  of  Delaware,  Marj-land, 
Virginia,  North  Carolina,  and  South  Carolina. 

2  Massachusetts,  New  York,  New  .Jersey,  rennsylvania,  and  South 
Carolina  established  such  an  office  by  fundamental  law ;  the  Lieuten- 
ant-Governor in  the  first-named  State  holding  the  second  official  rank 
with  the  ceremonious  title  of  "  His  Honor."  No  such  office  was  recog- 
nized in  New  Hampshire,  Delaware,  Maryland,  Virginia,  North  Caro- 
lina, or  Georgia. 


62  CONSTITUTIONAL  STUDIES. 

Hampshire,  for  instance,  the  people  annually  chose 
Senators  and  Councillors  together,  and  then  the 
Senate  thus  composed  would  select  the  Councillors ;  ^ 
but  unless  Pennsylvania  be  thought  an  exception  to 
the  early  American  rule,^  there  was  as  yet  no  truly 
direct  choice  of  Councillors  by  the  people.  The  idea 
of  an  executive  "Council  "  is  ere  this  nearly  exploded 
in  the  United  States;  but,  considering  the  regular 
State  practice  in  1787,  our  Federal  constitution  must 
have  had  a  narrow,  as  well  as  fortunate  escape,  from 
a  Cabinet  capable  of  tying  up  our  President's  hands, 
unless,  as  appears  most  likely,  the  States  themselves 
had  concluded  to  turn  their  own  councils  into  sen- 
ates, with  powers  more  ]3urely  legislative  than  before.^ 
The  absorption  of  executive  powers  by  the  legisla- 
tive department  was  very  great  in  these  times,  as  we 
have  already  seen,  and  the  Governor  had  little  of 
either  personal  independence  or  patronage,  save, 
j^erhaps,  as  commander-in-chief  in  some  military 
emergency.  Even  the  dignity  of  a  council  detracted 
from  his  authority.  Nevertheless,  he  might  con- 
vene and  adjourn  tlie  Legislature,  —  not  arbitrarily, 
as  in  1775,  but  to  much  the  same  extent  as  defined 
and  copied  later  in  the  Federal  constitution  for  a 
President  of  the  United  States.  He  had  no  absolute 
veto,^  such  as  provincial  governors  had  exercised, 
and  generally  the  States  were  at  present  indisposed 
to  grant  him  a  veto  power  at  all ;  but  Massachusetts 

'  Here,  as  already  shown,  the  Council  was  purely  an  executive 
appendage. 

2  Supra,  page  59. 

5  Massachn.sctts,  Maine,  and  New  Hampshire  are  seen  to  furnish  to 
modern  America  the  only  real  instance  of  executive  "Privy  Coun- 
cils ; "  and  councillors,  moreover,  are  now  chosen  in  these  States  di- 
rectly by  the  people.  Pennsylvania  and  Georgia  dropped  the  "  Council " 
out  of  their  new  constitutions  of  1789-90. 

*  South  Carolina's  hasty  and  temporary  instrument  of  1776  con- 
ferred such  power. 


EARLT  STATE   CONSTITUTIONS.  63 

by  1780  set  the  precedent  for  our  Federal  constitu- 
tion and  future  State  practice  by  conferring  a  quali- 
fied veto  which  the  Legislature  by  a  two-thirds  vote 
might  override.^  The  Governor  had  usually  the 
pardoning  power,  subject  perhaps  to  the  advice  of  his 
Council,  and  with  some  stated  exceptions. ^  He  sent 
messages  and  recommendations  to  the  Legislature.^ 
Usually  with  consent  of  his  Council  he  appointed 
the  lesser  State  officials ;  but  New  York,  unduly  fear- 
ful of  the  one-man  power,  vested  all  such  puljlic 
patronage  in  a  "Council  of  Appointment,"  or  Direc- 
tory, where  the  Governor,  as  a  single  individual, 
might  be  outvoted.*  Indeed,  for  such  high  officers 
as  Secretary  or  Treasurer  (for  judges,  too,  as  we 
shall  see  presently)  and  often  in  military  appoint- 
ments, the  Legislature  kept  sedulously  the  selection 
to  itself,  as  the  true  representative  of  the  people; 
not  unfrequently  adding  such  small  county  appoint- 
ments as  were  not  left  to  the  local  voters.^  Massa- 
chusetts and  New  Hampshire,  on  the  other  hand, 
allowed  the  Governor  a  considerable  patronage,  sub- 
ject, however,  to  "the  advice  and  consent  of  the 
Council,"  which,  if  comprising  any  year  a  majority 
of  political  opponents,  might  of  course  obstruct  his 
wishes.     As   commander-in-chief   of   the   army   and 

1  The  qualified  veto  was  given  by  the  constitution  of  New  York  to 
a  special  "  Council  of  Revision,"  or  a  directory,  which  consisted  of  the 
Governor,  the  Chancellor,  and  the  judges  of  the  highest  court. 

-  Except  for  impeaclinients.  Massachusetts  and  New  Hampshire. 
No  pardon  before  conviction.  New  Hampshire,  New  York.  In  treason 
and  murder  he  may  reprieve  and  then  report  to  Legislature.   New  York. 

3  New  York,  1777. 

*  See  New  York  constitution  (1777)  as  defined  in  1801.  Pennsyl- 
vania's con.stitution  of  1776  vested  the  public  patronage  in  its  directory 
of  President  and  Council. 

6  In  Maryland  the  Legislature  was  to  choose  one  Treasurer  for  the 
eastern  shore  and  another  for  the  western.  No  Treasurer  can  sit  in  the 
Legislature  until  he  has  settled  his  accounts.     North  Carolina. 


64  CONSTITUTIONAL   STUDIES. 

navy  and  of  all  the  military  forces  of  the  State 
"by  sea  or  land,"  the  Governor  had  various  powers 
thus  early  which  were  enumerated  with  much  pomp- 
ous phraseology;  he  was  authorized  to  embody  the 
militia  and  direct  it  when  embodied;  he  might 
assemble  and  conduct  such  forces  in  martial  array, 
"encounter,  repel,  and  resist"  the  enemy  by  sea  or 
land;  "kill,  slay,  or  destroy  if  necessary,  and  con- 
quer." ^  The  forts  and  garrisons  of  the  State  were 
subject  to  his  supervision,  and  he  might  lay  temporary- 
embargoes  or  prohibit  exportation;  but  his  power  to 
commence  war  or  conclude  peace  was  kept  subordi- 
nate to  the  will  of  the  Legislature. ^  In  fine,  the 
Governor  was  to  "  take  care  that  the  laws  were  faith- 
fully executed;  "^  and  to  exercise  all  other  executive 
powers  of  government,  limited  and  restrained  by  the 
laws  of  the  State.* 

The  Judiciary  was  recognized  in  the  old  thirteen 
States  as  an  important  bulwark  of  free  government; 
though  the  scope  of  its  remarkable  power  in  subject- 
ing acts  of  legislation  to  the  written  constitution  had 
yet  to  be  tested.  But  how  to  appoint  the  judges  of 
a  free  republic  was  an  instant  and  difficult  problem. 
In  general,  the  local  Legislature  claimed  at  once  the 

1  This  quaint  language,  still  unchanged  in  the  Massachusetts  con- 
stitution, originates  in  the  expression  of  the  old  royal  charters,  as  far 
back  even  as  that  of  Virginia  in  1609.  But  under  the  Pennsylvania 
constitution  (1776)  the  Governor  could  not  take  personal  command 
without  approval  of  the  Council. 

-  Much  of  this  authority  (especially  as  to  commercial  powers  and  a 
navy)  was  practically  superseded  when  our  Federal  constitution  went 
into  operation  in  1789. 

8  See  New  York  constitution  of  1777.  Money  (as  voted  by  the 
Legislature)  was  to  be  drawn  from  the  treasury  on  his  warrant.  Mas- 
sachusetts, New  Hampshire,  North  Carolina.  But  no  money  could  be 
drawn  from  tlic  treasury  without  legislative  assent.  South  Carolina, 
1778. 

4  North  Carolina,  1776. 


EARLY  STATE   CONSTITUTIONS.  65 

right  to  participate  at  least  in  so  precious  a  selection. 
Six  out  of  thirteen  States  conceded  the  choice  accord- 
ingly without  reserve;^  Georgia  set  a  dubious  rule 
\vhich  developed  into  a  peculiar  selection  by  these 
representatives  of  the  people  ;2  Delaware  united 
Executive  and  Legislature  in  the  choice.  ^laryland, 
Massachusetts,  and  New  Hampshire  alone  permitted 
the  Governor  to  appoint  the  judges  with  consent  of 
Council ;  a  special  Directory,  or  "  Council  of  Appoint- 
ment," absorbed  such  functions  in  New  York;  and 
lastly  in  Pennsylvania  (if  permitted  by  the  Legisla- 
ture), that  general  Directory  of  "President  and 
Council."^  The  English  rule  of  stable  and  perma- 
nent tenure  had  usually  been  in  high  favor  among 
these  colonies ;  hence  good  behavior  was  the  judicial 
term  originally  adopted  by  a  majority  of  States.^ 
"Ability  rather  than  wealth"  being  always  a  maxim 
of  the  legal  profession,  property  qualifications  for 
this  judicial  station  were  dispensed  witli.^  But  the 
less  dignified  justices  of  the  peace  who  monopolized 
more  than  they  do  now  the  petty  jurisdiction  of  local 
magistrate,  were  vested  usually  with  a  moderate 
term  of  office.''     Courts  were  left  commonly  to  ap- 

1  New  Jersey,  Virginia,  North  Carolina,  South  Carolina;  as  also 
Rhode  Island  ami  Connecticut  under  charter  practice. 

-  See  constitution  of  1789,  under  which  the  House  chose  three  can- 
didates, one  of  whom  the  Senate  finally  selected. 

3  Pennsylvania's  constitution  of  1776,  ambiguously  drawn,  seems  to 
have  given  the  Assembly  much  latitude  in  drawing  all  such  patronage 
to  it.solf. 

*  But  New  Jersey  and  Pennsylvania  preferred  a  term  fixed  at  seven 
years  for  the  highest  tribunal,  with  a  right  of  reappointment.  New 
York  already  prescribed  a  limit  when  the  incumbent  reached  sixty 
years  of  age.  Georgia,  a  State  which  long  disfavored  a  regular  judi- 
ciary as  compared  with  business  referees,  or  "  courts  merchant,"  set  a 
three-years  limit. 

^  "  Fixed  and  adequate,"  "  moderate,"  etc.,  salaries  were  sometimes 
enjoined;  as  in  Virginia,  n'I'G. 

^  Three,  five,  or  seven  years  was  the  usual  prescribed  limit ;   the 

5 


66  CONSTITUTIONAL  STUDIES. 

point  their  own  clerks,  and  in  some  States  the  district 
attorneys,  marshals,  and  sheriffs  besides.  All  such 
court  officials,  and  even  the  Attorney-General  (where 
such  a  State  officer  was  recognized  at  all),  enjoyed  a 
safe  and  stable  tenure  in  these  days. 

Colonial  usage  would  determine  largely  in  each 
free  State  the  scope  of  the  judicial  establishment. 
Outside  of  New  England,  separate  equity  powers  as 
distinct  from  the  common  law  had  considerable 
range,  and  sometimes  the  Governor,  though  more 
fitly  a  Chancellor,  conducted  that  branch  of  jurisdic- 
tion. The  sudden  stoppage  in  1776  of  judicial  ap- 
peals to  King  and  Council  caused  much  perplexity. 
Maryland's  constitution  set  the  prompt  example  of  a 
specific  Court  of  Appeals  by  way  of  substitute,  for  all 
cases  whether  in  common  law,  chancery,  or  admiralty ; 
but  in  most  other  State  constitutions  of  this  era  we 
perceive  bewilderment,  confusion,  and  a  disposition 
to  mix  Executive  and  Judiciary  together  for  a  last 
resort,  somewhat  as  before.  New  York  for  both  law 
and  equity  set  up  a  Court  of  Errors  which  (to  copy  a 
British  House  of  Lords)  consisted  of  the  Senators, 
the  Chancellor,  and  the  Supreme  Court  Judges;  in 
New  Jersey,  Delaware,  and  one  or  two  other  States, 
the  Governor  and  Council  constituted  a  final  tribunal ; 
Georgia,  with  her  bald  judicial  system,  comprising  a 
superior  but  no  supreme  court,  left  appellate  powers 
l)y  1789  to  the  Legislature.  The  constitutions  of 
Virginia,  Pennsylvania,  and  North  Carolina  con- 
tained nothing  very  explicit.^  Massachusetts  and 
New  Hampshire,  while  trusting  the  Legislature  for 

Massachusetts  constitution  recitinp;  as  a  reason,  "  that  the  people  may 
not  suffer"  from  the  lone;  continuance  of  incunil)ents  who  fail  in  fidel- 
ity or  ability.  In  a  few  States  only  the  tenure  of  such  magistrates  was 
good  behavior. 

1  Pennsylvania's  constitution  gave  certain  chancery  powers  to  the 
common-law  courts. 


EARLY  STATE   CONSTITUTIONS.         67 

a  permanent  system,  left  probate  appeals  and  matri- 
monial matters  temporarily  with  the  Governor  and 
Council.  We  may  further  observe  here  that  in 
Massachusetts  the  Governor  or  Legislature  might 
require  the  solemn  opinion  of  the  justices  of  the 
Supreme  Court,  —  an  expedient  for  times  of  per- 
plexity which  some  other  States  have  since  adopted. 
Judges  in  Massachusetts  and  New  Hampshire  were 
removable  by  the  Governor  (with  consent  of  Council) 
on  address  of  the  two  houses,  —  a  summary  means 
for  disposing  of  men  upon  the  bench  personally  and 
politically  obnoxious  ;i  but  in  Maryland,  a  judge 
could  be  removed  only  for  misbehavior  on  conviction 
in  a  court  of  law.  All  officers  of  the  State,  includ- 
ing those  of  judicial  station,  might  be  impeached,  as 
various  constitutions  prescribed,  and  expelled  accord- 
ingly; the  House  of  Representatives  constituting 
the  body  of  grand  inquest  and  prosecution,  while  the 
Senate  or  Council  (or  some  such  mixed  tribunal  as 
the  New  York  Court  of  Errors  ^  might  afford)  tried 
and  determined  the  cause,  and  gave  sentence  upon 
conviction.  3 

As  for  miscellaneous  provisions  of  these  early  con- 
stitutions worth  mentioning,  the  Legislature  was 
empowered  in  some  States  not  only  to  impeach,  as 
above,  or  to  expel  its  own  members  in  either  house, 
but  also  to  punish  persons  who  were  not  members  for 

1  "  Shall  be  removed."  South  Carolina.  Eemovable  by  the  Legis- 
lature for  misbehavior.     Pennsylvania. 

2  Supra,  page  6G.     And  see  South  Carolina,  1778. 

3  In  Pennsylvania  one  might  be  impeached  eitlier  while  in  office  or 
after  his  resignation  or  removal,  and  the  President  and  Council  tried 
the  case.  Persons  when  out  of  office  might  also  be  impeached  in  Vir- 
ginia; and  here  the  trial  of  impeachments  was  left  undefined,  but 
"forever  disabled"  from  holding  office  was  made  a  suitable  penalty 
Banishment  was  a  permitted  penalty  in  Maryland. 


68  CONSTITUTIONAL  STUDIES. 

disorderly  or  contemptuous  behavior,  by  au  imprison- 
ment of  not  more  than  thirty  days.^  Oaths  for  mem- 
bers of  the  Legislature  and  for  oflicials  were  plentiful 
in  several  of  these  instruments,  the  framers  thus 
founding  a  prosecution  for  perjury  as  well  as  more 
direct  criminal  proceedings  against  the  offender. 
There  was  the  oath  of  allegiance  to  be  taken,  which 
abjured  Great  Britain  and  acknowledged  the  State 
as  "free,  sovereign,  and  independent;"  the  oath  to 
faithfully  serve  as  officer  or  representative ;  the  oath 
of  religious  belief  which  conformed  to  Christian  tests ; 
and  the  oath  of  owning  the  requisite  property.  ^ 

Jealousy  of  an  oihce-holding  class  was  manifest 
beyond  the  "  Bill  of  Rights"  denouncement  of  inherited 
station.^  Constitutional  provisions  are  seen  in  a 
majority  of  States  against  a  plurality  of  public  offices, 
or  the  holding  of  more  than  one  lucrative  office  at  a 
time.  Judges,  sheriffs,  and  registers  were  in  various 
States  expressly  forbidden  to  sit  in  the  Legislature ; 
so  also  were  delegates  and  others  in  the  Continental 
service,  military  officers,  and  army  or  navy  contract- 
ors ;  *  and  ministers  of  the  gospel,  as  already  stated, 
were  placed  under  a  special  ban  in  various  States,  so 
far  as  political  station  was  concerned,  while  Massa- 
chusetts applied  secular  exclusion  rather  to  all  in- 
structors at  Harvard  College.^ 

^  Maryland,  Massachusetts,  and  New  Hampshire. 

"  Maryland  and  Pennsylvania  prescril)ed  under  penalty  various 
special  oaths  ;  as,  for  instance  (in  the  former  State),  not  to  participate 
in  the  profits  of  office  or  of  any  public  contracts ;  to  vote  impartially 
and  for  tlie  public  welfare,  witliout  having  promised  one's  vote,  etc. 

^  Supra,  page  32. 

*  Delaware  and  North  Carolina. 

5  The  South  Carolina  instrument  of  1778  forbade  the  father  or 
brother  of  the  Governor  for  the  time  being  to  sit  in  the  Council. 

Upon  office-holding  generally,  the  constitntit)n  of  Pennsylvania 
(1776)  observes  that,  as  every  freeman,  to  preserve  his  independence, 
ought  to  have  some  profession,  calling,  trade,  or  farm  for  his  honest 


EARLY  STATE   CONSTITUTIONS.  69 

The  Pennsylvania  instrument  of  1776  —  odd  and 
rather  fanciful,  as  we  have  seen,  in  its  scheme  of 
popular  government,  though  framed  by  a  convention 
over  which  the  great  Franklin  presides  —  was  much 
given  to  homily  and  didactic  exposition ;  and  so,  too, 
was  that  of  Massachusetts.  Greatly  as  the  two  com- 
monwealths differed  on  the  question  of  religious 
polity  at  this  date,  they  were  alike  in  announcing  a 
broad  scheme  of  secular  instruction  such  as  might 
place  self-government  securely  upon  the  sound  basis 
of  public  intelligence  and  virtue.  Massachusetts, 
peculiarly  proud  of  her  Harvard  College  as  the  crown 
and  capstone  of  a  liberal  education,  confirmed  that 
institution  in  all  its  franchises,  lands,  and  endow- 
ments, and  gave  it  at  once  a  State  association  by 
placing  the  chief  dignitaries  of  the  Commonwealth  ex 
officio  upon  its  board  of  government,  —  a  connection 
which  lasted  far  into  the  nineteenth  century.  Public 
and  grammar  schools  in  the  various  towns  were 
generously  fostered  besides  by  the  fundamental  law 
of  Massachusetts;  and  protection  was  promised  to 
private  and  public  institutions,  with  rewards  and 
immunities  for  the  arts  and  sciences.^  Pennsylvania, 
too,  exhorted  her  Legislature  to  encourage  one  or 
more  universities  of  useful  learning,  and  to  establish 
schools  in  each  county  for  the  convenient  instruction 
of  children,  with  such  public  salaries  to  the  mas- 
ters "as  may  enable  them  to  instruct  youth  at  low 
prices."  2 

subsistence,  "there  can  be  no  necessity  for,  nor  use  in,  establishing 
offices  of  profit,  the  usual  effects  of  which  are  dependence  and  servility 
unbecoming  freemen."  But  whoever  is  called  into  public  service  to 
the  prejudice  of  his  private  affairs,  "  has  a  right  to  a  reasonable  com- 
pensation ; "  and  whenever  an  office  becomes  so  profitable  that  many 
compete  for  it,  the  Legislature  ought  to  lessen  its  profits. 

1  Massachusetts,  1780. 

2  Pennsylvania,  1776. 


PART   II. 

THE    FEDERAL   UXIOK. 

I. 

EARLY  TENDENCIES  TO   UNION. 
1609-1764. 

'  Next  to  the  voyage  of  Columbus  and  the  disclosure 
of  a  New  World  to  civilized  Europe,  the  most  preg- 
nant event  for  the  advancement  of  this  western 
hemisphere,  in  the  North  American  portion  at  least, 
was  the  planting  of  tliirteen  English  colonies,  adja- 
cent to  one  another,  on  our  northern  Atlantic  coast. 
That  grand  origination  of  law-loving  liberty  occupied 
most  of  the  seventeenth  and  eighteenth  centuries; 
and  had  England,  the  mother  country,  ruled  her 
offspring  ever  so  kindly,  independence  and  imion 
must  sooner  or  later  have  resulted.  Most  fortunate 
was  it  for  America  that  Europe  had  gained  since 
1492  more  than  a  hundred  years'  headway  in  liberal 
ideas  before  this  British  transplantation  commenced ; 
nor  can  we  deem  it  inauspicious  for  the  coming  age 
that  the  thirteen  settlements,  chaotic  to  some  extent 
in  population,  yet  overwhelmingly  British,  should, 
with  all  their  zeal  for  reformed  Christianity  and  all 
their  inborn  love  of  freedom,  have  originated  apart 
and  developed  striking  differences  of  tastes  and  habits 
of  life  in  their  several  colonial  confines. 

E  pluribus  unum  —  the  "one  from  many"  —  is  a 
clear  epitome,  forever  historical,  stated  in  the  most 
concise  phrase  possible,  of  the  origin  and  structure  of 


EARLT  TENDENCIES   TO    UNION.         71 

the  present  United  States  of  America.  The  E  pluri- 
bus  fundamentals  have  already  been  discussed;  and 
umim  now  demands  our  contiiuious  attention.  The 
immense  predominance  of  the  Anglo-Saxon  element 
from  the  very  start  in  these  American  settlements 
guaranteed  to  the  soil  a  people  bound  by  those  endur- 
ing ligaments  of  a  common  history,  a  common  lan- 
guage and  literature,  common  political  institutions, 
and  a  common  jurisprudence.  Whatever  might  have 
been  their  differences  in  colonial  origin  and  aftilia- 
tions,  they  were  unified  in  loyalty  to  a  common  line 
of  sovereigns,  whose  policy,  however  differing  with 
individual  rulers,  embraced  essentially  one  conti- 
nental scheme  for  all.  There  were  traits,  moreover, 
in  their  common  isolation  from  the  old  world  which 
naturally  induced  contiguous  colonies  to  enter  into 
mutual  leagues  and  compacts.  Arms  and  succor  had 
to  be  provided  against  the  Indians,  their  common  foe, 
where  philanthropy  could  not  pacify;  reciprocal  trade 
and  commerce  needed  occasional  adjustment,  as  did 
also  the  reciprocal  right  to  settle,  purchase  lands, 
and  inherit,  and  the  extradition  of  criminals;  and 
the  old  royal  grants  were  soon  seen  to  have  defined 
colonial  boundaries  with  so  little  precision  that 
whenever  the  time  should  come  to  push  American 
settlement  westward  into  the  Mississippi  valley,  the 
conflicting  claims  of  our  earlier  jurisdictions  must 
needs  have  merged  for  the  good  of  the  whole  people 
in  a  common  territory  with  a  common  pre-emption 
from  tlie  red  tribes,  and  a  common  and  comprehen- 
sive policy  to  pursue  towards  all  the  frontier  foes  of 
American  progress.  For  behind  these  untamed  chil- 
dren of  nature,  the  aboriginal  occupants  of  the 
American  wilderness,  stood  France  and  Spain.  Still 
more  instant  for  adjustment  between  particular  colo- 
nies  were    Atlantic   problems   of    coast   and   harbor 


72  CONSTITUTIONAL   STUDIES, 

jurisdiction,  and  disputes  among  adjacent  colonies 
over  the  use  of  such  navigable  waters  as  the  Con- 
necticut, Delaware,  and  Potomac  rivers,  and  the 
New  York,  Delaware,  and  Chesaj)eake  bays.  King 
and  Parliament  might  arbitrate  such  disputes  for  the 
first  century  or  two  of  rapid  growth  and  expansion; 
but  the  time  was  sure  to  come,  not  many  generations 
distant,  when  a  government  remote  be3'0nd  the  seas 
and  monarchical  would  prove  incompetent  for  a  task 
so  immense  that  Union  with  home  rule  could  alone 
achieve  it. 

That  these  tendencies  to  Union  existed  early  in 
the  American  colonies,  without  any  clear  conscious- 
ness of  disloyalty  or  forecast  of  a  coming  separation 
from  the  mother  country,  appears  from  various 
leagues  or  compacts  of  the  colonial  era,  chief  and 
earliest  among  which  should  be  mentioned  that  of  the 
''New  England  Confederacy."  Massachusetts,  Pl}'- 
mouth,  Connecticut,  and  New  Haven,  colonies  singu- 
larly homogeneous  in  origin  and  character,  formed 
in  May,  1643,  what  they  styled  a  "perpetual  con- 
federation,"—  "a  firm  and  perpetual  league"  for 
themselves  and  posterity  under  the  name  of  the 
"United  Colonies  of  New  England."  The  "sad 
distractions  "  of  civil  war  in  the  mother  country, 
which  drove  these  neighboring  colonies  to  their  own 
resources  for  mutual  succor  and  advice,  furnished  the 
ostensible  and  perhaps  a  sufficient  motive  for  so  dar- 
ing an  assumption  of  sovereignt}'  and  self-govern- 
ment. This  instrument  of  sectional  Union  disclosed 
religious  as  well  as  political  designs;  for  which 
reason  it  happened,  most  probably,  that  Rhode 
Island,  wliose  free  religious  tenets  found  little  favor, 
was  refused  admission.  Mutual  offence  and  defence 
against  native  tribes  and  the  Dutch  were  here  sought 


EARLY  TENDENCIES  TO    UNION.  73 

most  of  all ;  and  under  the  united  auspices  of  this 
league  the  colonies  who  made  the  name  "  New  Eng- 
land "  lastingly  native,  fought  together  unaided  the 
Pequod  and  King  Philip  wars.  Mutual  reception 
of  settlers  and  the  mutual  extradition  of  "servants  "  ^ 
and  of  fugitives  from  justice  were  other  objects  of 
the  alliance  distinctly  provided  for. 

This  New  England  Confederacy,  jealously  exclusive 
and  sectional  in  character,  and  stipulating  expressly 
tliat  without  a  unanimous  assent  no  other  colony 
should  share  its  benefits,  respected  scrupulously  the 
autonomy  of  each  sovereign  member  of  the  Union 
and  all  reserved  rights.  Its  management  of  confeder- 
ate affairs  was  in  the  nature  of  a  joint  representative 
board,  or  committee.  Eight  commissioners  compris- 
ing the  board,  with  an  equality  of  representation,'"^ 
and  chosen  two  each  from  the  several  colonies,  were 
to  manage  the  common  concerns,  meeting  once  a  year 
by  rotation  in  Boston,  Hartford,  New  Haven,  and 
Plymouth,  and  on  extraordinary  occasion  at  con- 
venience. Six  out  of  eight  might  determine  the 
common  business,  "not  intermeddling  with  the  gov- 
ernment of  any  of  the  jurisdictions;"  and  if  six 
commissioners  could  not  agree,  the  subject  was  to  be 
referred  to  the  four  colonial  legislatures  for  conclu- 
sion. No  provision  was  made  for  amending  these 
Articles  of  Confederation ;  but  for  any  infraction  of 
the  league,  commissioners  of  the  other  unoffending 
jurisdictions  should  consider  and  order  for  the  peace- 
ful preservation  of  this  Union  inviolate.  The  charge 
of  all  just  wars  offensive  or  defensive  was  to  be 
borne  by  a  poll  or  census  enumeration,  each  colony 
rating  for  itself;  and  all  booty  or  conquered  territory 
was  to  be  ratably  divided.     Any  of  these  confederated 

^  Cf.  Constitution  of  United  States,  Art.  IV.  §  2. 

2  Two  from  each  colony,  and  "  all  in  church  fellowship  with  us." 


74  CONSTITUTIONAL   STUDIES. 

colonies    "invaded  by  any  enemy  whatsoever"  was 
to  call  upon  the  others  for  assistance.  ^ 

Boards  of  commissioners,  mutually  chosen  on  the 
principle  of  co-ordinate  sovereignty,  were  found  in 
various  other  instances  a  convenient  mode  of  nego- 
tiating differences  among  the  colonies  or  planning 
concerted  action.  Thus  did  the  navigation  of  the 
Chesapeake  and  Potomac  waters  engage  INIaryland 
and  Virginia  from  time  to  time;  and  disputed 
boundary  rights  were  elsewhere  a  cause  of  irritat- 
ing collision,  demanding  a  mutual  conference  for 
adjustment. 

After  the  New  England  Confederacy  had  finally 
disappeared,  various  plans  were  proposed  for  a  more 
comprehensive  union  of  all  the  British  colonies  in 
North  America,  which  might  insure  unanimity  of 
action,  more  especially  against  the  French  and 
Indian  allies  who  menaced  their  general  safety.  One 
such  plan  was  considered  at  London  by  the  Board  of 
Trade,  but  the  peace  of  Ryswick  caused  it  to  be  for- 

1  yee  Boweii's  "  Documents  of  the  Constitution,"  79,  for  these 
"Articles  of  Confederation."  This  was  indeed  a  daring  document  for 
recognized  subjects  of  tlie  British  Crown  to  frame  and  carr}'  into  effect 
without  a  submission,  so  far  as  appears,  to  the  home  government  or 
the  procurement  of  home  authority.  Some  writers  have  thought  that 
these  New  England  colonists  intended  a  sectional  reliellion ;  but  M-e 
need  not  strain  the  natural  pur])ort  of  tlie  league,  wliich  (though  styled 
"  perpetual  ")  aimed  to  provide  for  immediate  needs  while  Great  Britain 
was  absorbed  in  her  own  struggle  for  existence.  These  New  England 
settlers  inclined  strongly  from  the  first  to  resolve  all  ])olitical  doubts  of 
autliority  in  their  own  favor ;  and  there  Avere  contingencies  certainly, 
in  the  English  civil  war  and  under  Crorawoll's  usurpation,  which  might 
have  wrought  out  a  premature  colonial  independence  in  America  prior 
to  a  c/)ntinental  union.  To  take  such  contingencies  into  account  was 
neither  rebellion  nor  disloyalty.  This  New  England  Confederation 
kept  its  vigor  and  efficacy  for  some  forty  years,  and  until  after  the 
accession  of  Charles  II. ;  and  Hutchinson  says  that  it  received  Eng- 
lish countenance  and  acknowledgment  from  its  beginning  until  the 
Restoration. 


EARLY  TENDENCIES   TO    UNION.  75 

gotten.  Half  a  century  later,  under  the  new  pressure 
of  French  and  Indian  hostilities  which  threatened  to 
expel  British  influence  from  the  continent,  came  two 
significant  tokens  of  confederate  union  (1)  in  the 
assembling  of  a  Convention  (or  Congress)  of  colonial 
delegates  at  Albany  in  1754,  and  (2)  in  the  adoption 
and  proposal  by  that  convention  of  a  plan  of  union 
which  Benjamin  Franklin,  as  a  leading  delegate,  had 
drafted.^  Seven  colonies  north  of  the  Potomac  were 
here  represented,  the  Board  of  Trade  having  sum- 
moned the  convention  in  view  of  impending  war; 
and  being  thus  assembled,  the  delegates,  in  addition 
to  the  Indian  treaty  business  which  was  the  main 
concern,  discussed  the  weightier  subject  of  union  and 
confederation  for  the  general  interests  of  these  North 
American  colonies  in  peace  as  well  as  war.  Among 
other  plans  accordingly  presented,  Franklin's  was 
preferred,  and  after  a  protracted  debate  adopted 
either  unanimously,  or  with  the  dissent  of  a  single 
State.  But  outside  of  the  convention  this  plan  met 
but  little  favor.  It  was  rejected  presently  by  all  the 
colonial  assemblies  which  considered  it  at  all,  while 
the  Board  of  Trade  declined  even  to  recommend  it 
to  the  King's  notice.  As  Franklin  says,  "The 
assemblies  all  thought  there  was  too  much  prerogative 
in  it,  and  in  England  it  was  thought  to  have  too 
much  of  the  democratic."  Indeed,  the  obvious  effort 
of  this  instrument  to  please  all  parties,  and  to  recon- 
cile dutiful  allegiance  with  home  rule,  produced  its 
natural  result. 

In  Franklin's  plan  of  1754,  as  sui3plied  from  his 
posthumous  papers,  the  various  items  of  proposed 
government  are  set  forth  with  annotated  reasons  and 

1  As  Postmaster-General  of  these  colonics  by  appointment  of  the 
British  Crown,  Dr.  Franklin  had  ample  opportunity  to  consider  later 
the  advantage  of  a  closer  system  of  continental  union. 


76  CONSTITUTIONAL  STUDIES. 

motives  for  each  of  them.  Its  preamble,  in  choice 
and  deferential  language,  proposed  petitioning  for  an 
Act  of  Parliament  which  might  establish  one  general 
government  for  these  American  colonies,  under  a 
reservation  that  each  colony  should  retain  its  existing 
constitution  except  in  the  particulars  set  forth.  The 
scheme  proper  is  styled,  "  Plan  of  Union  of  the  British 
American  Colonies ; "  thus  discreetly  avoiding  any 
style  savoring  of  independence,  such  as  the  New 
England  Confederacy  had  employed,  or  claiming  to 
last  as  perpetual.  A  Grand  Council  was  created, 
after  the  familiar  pattern  of  a  Board  of  Commis- 
sioners, but  with  this  new  step  in  advance,  sure  to 
provoke  resistance,  that  colonies  were  not  to  be 
coequal  in  composing  it;  council  representation,  in 
other  words,  being  based  upon  a  sort  of  money 
apportionment,  which  proposed  taking  always  into 
account  the  relative  contributions  of  the  thirteen 
colonies  to  the  general  treasury,  and  under  its 
preliminary  schedule  placed  Massachusetts,  Virginia, 
and  Pennsylvania  distinctly  foremost.  Such  par- 
tiality must  have  provoked  the  jealousy  of  smaller 
States,  while  on  the  other  hand  compromising  theo- 
retically the  sound  democratic  doctrine  of  apportion- 
ing by  numbers.  Then,  as  if  to  disconcert  the 
representative  authority  of  these  colonies,  a  Presi- 
dent-General, made  after  the  image  of  the  familiar 
provincial  governor,  was  to  be  appointed  by  the 
Crown  to  carry  into  execution  with  very  ample  dis- 
cretionary powers  the  acts  of  the  Grand  Council. 
Without  his  assent  their  representative  decrees  were 
to  be  of  no  avail  whatever.  Indian  peace  or  war, 
and  Indian  treaties,  this  President-General  might 
determine  with  the  advice  of  the  Grand  Council; 
while  as  concerned  appointments,  he  was  to  nominate 
all  military  officers  to  them,  and  they  were  to  nomi- 


EARLY  TENDENCIES   TO   UNION.         11 

iiate  all  civil  officers  to  him.  This  common  govern- 
ment of  the  colonies  was  to  raise  soldiers,  build  forts, 
and  equip  vessels  to  guard  the  coast  and  protect 
commerce;  and  for  the  purposes  delegated  it  Avas 
to  levy  duties,  imports,  or  taxes  at  convenience,  and 
appoint  a  general  Treasurer.  One  pregnant  power 
was  that  of  purchasing  lands  from  the  Indians  and 
regulating  and  governing  new  settlements  in  the  pur- 
chased territory  until  the  Crown  should  see  fit  to 
form  them  into  particular  governments.  For,  as  Dr. 
Franklin  argued,  a  single  purchaser,  in  the  name 
of  the  Crown  or  the  Union,  and  a  single  authority 
for  developing  new  colonies,  was  preferable  to  many. 
No  money  should  issue,  however,  but  by  joint 
order  of  the  President-General  and  Grand  Coun- 
cil; and  (as  in  most  of  the  individual  colonies)  all 
laAvs  passed  by  their  concurrence  were  to  be  trans- 
mitted to  the  King  in  council,  subject  to  his  approval 
or  disapproval.^ 

On  the  whole,  this  Franklin  plan  of  continental 
union,  though  a  sagacious  emanation  for  the  times, 
projected  too  difficult  a  political  experiment,  in 
harnessing  so  closely  King  and  colonies,  prerogative 
and  people,  for  a  general  direction  of  affairs  which 
each  must  have  felt  better  competent  to  under- 
take alone,  —  an  experiment  which,  proposing  co- 
operation, was  more  likely  to  end  in  distraction. 
That  spirit,  too,  of  self-sacrifice  and  subordination, 
which  so  many  equal  jurisdictions  would  have  to  in- 
voke when  delegating  authority  for  the  sake  of  union, 
needed  some  clearer  incentive.  The  conclusion  of 
the  colonists  was  wise,  therefore,  to  wait  for  some 
more  solemn  exigency,  when  union  and  home  govern- 
ment might  more  readily  coincide.     Yet  the  scheme 

^  See  Bowen's  Documents,  87,  for  "Franklin's  Plan." 


78  CONSTITUTIONAL  STUDIES. 

proposed  by  America's  most  distinguished  son  and 
statesman  of  that  early  day,  and  the  discussion  over 
its  adoption,  undoubtedly  prepared  the  minds  of 
American  colonists  for  the  genuine  continental  union 
wliich  took  definite  shape  a  generation  later. 


II. 

INDEPENDENCE   AND  REVOLUTION. 
1765-1780. 

During  the  first  sixty  years  of  the  eighteenth  cen- 
tury these  ti'ansatlantic  colonies  maintained  peace- 
ful relations  with  the  mother  country,  joining  as  loyal 
sons  of  Great  Britain  in  the  prosecution  of  the  French 
and  Indian  War,  and  rejoicing  over  the  crowning 
conquest  of  Quebec  as  their  common  glory.  As 
Burke  observed  in  1775,  America  owed  little  to  any 
care  by  Great  Britain,  but  had  gained  "through  a 
wise  and  salutary  neglect."  But  there  had  been  early 
causes  for  discontent  in  particular  colonies;  and 
when  Parliament,  with  arbitrary  pride,  undertook  to 
lay  the  burden  of  taxation  for  that  war  upon  the 
colonists,  —  asserting  what  a  minority  so  aptly  styled 
"the  right  to  shear  the  wolf,"  —  colonial  resistance 
became  universal.  This  French  expulsion  from  the 
northwestern  frontier  had  strongly  developed  both 
the  martial  hardihood  and  the  co-operative  inclination 
of  our  colonists;  and  a  dispute,  formerly  languid, 
touching  the  legal  status  of  their  several  colonial 
assemblies,  and  the  abstract  right  of  Parliament  to 
levy  taxes  in  America  without  the  assent  of  local 
representatives,  blazed  at  once  into  a  continental 
issue  vital  to  colonial  liberty  itself. 

The  colonial  Stamp  Act,  which  passed  the  British 
Parliament  in  1763,  gave  America  the  first  rude 
alarm ;  the  tax  itself  being  slight  enough,  to  be  sure. 


80  CONSTITUTIONAL  STUDIES. 

but  the  principle  of  levjdng  it  most  obnoxious,  and 
the  precedent  one  which  might  foster  other  distant 
impositions.  United  protest  and  resistance,  almost 
spontaneous,  resulted.  As  co-ordinate  colonies  had 
sent  delegates  to  a  convention  in  1754  on  the  King's 
summons,  so  now  they  summoned  a  convention  of 
their  own,  which  met  in  New  York  City  in  October, 
1765.  This  was  the  assembly  historically  known  as 
the  "Stamp  Act  Congress;  "  and  so  ominous  was  the 
spectacle  of  such  a  body  that  Parliament  and  the 
Crown  receded  a  short  while  from  the  new  endeavor, 
and  early  the  next  year  this  Stamp  Act  was  repealed. 
But  Parliament  still  claimed  the  unqualihed  para- 
mount right  to  legislate  for  the  colonies  on  all  sub- 
jects whatsoever;  and  under  the  influence  of  the 
stubborn  George  III.  the  policy  of  arbitrary  taxation 
for  the  colonies  was  resumed  in  a  new  mode,  and 
with  vexatious  accompaniments  for  humbling  Massa- 
chusetts, whose  rebellious  temper,  fomented  by 
earlier  differences,  singled  her  out  for  discipline. 
Our  thirteen  colonies  resolved  unitedly  that  the 
oppression  of  one  jurisdiction  should  be  deemed  the 
oppression  of  all ;  and  a  Continental  Congress  M'^as 
once  more  convoked ;  this  time,  as  events  compelled, 
to  become  tlie  prime  agent  of  unified  revolution  and 
of  a  new  unified  confederacy.  At  Philadelphia  met 
the  first  Continental  Congress,  vSeptember  17,  1774, 
folloAved  by  the  second  in  May,  1775,  after  bloodshed 
had  begun.  Events  forced  what  might  have  been 
otherwise  a  temporary  assembly  into  a  permanent 
one.  In  this  second  Congress  a  commander-in-chief 
was  appointed  for  all  the  colonies,  continental  troops 
were  enrolled,  and  quotas  of  men  and  money  were 
assigned.  At  the  third  Congress  of  1776,  with 
delegates  chosen  for  the  year  as  before  from  the 
several  colonies,  the  war  for  independence  swept  like 


INDEPENDENCE  AND  REVOLUTION.       81 

a  torrent  all  scrupulous  sense  of  allegiance,  and  on 
the  4tli  of  July  of  that  year  the  immortal  Declara- 
tion went  forth  to  the  world. 

This  great  body  of  the  American  people  had  taken 
up  arms  not  to  vindicate  abstract  rights,  but  to 
redress  practical  wrongs;  and  revolution  and  inde- 
pendence came  to  them,  in  the  main,  as  the  logical 
and  unpremeditated  result  of  a  hostile  domestic 
resistance.  For  after  a  resort  to  the  arbitrament  of 
violence,  victory  can  seldom  rest  with  wiping  out  the 
temporary  wrong,  leaving  the  opportunity  as  before 
to  inflict  new  ones.^  In  reading  over  this  Declara- 
tion of  Independence,  with  its  earnest  indictment  of 
grievances  against  Great  Britain,  one  perceives  that 
the  whole  denunciation  was  concentrated  upon  the 
King  in  person,  while  Parliament  received  but  an 
indirect  and  contemptuous  allusion.  The  "self- 
evident"  truths  which  this  instrument  asserted  by 
way  of  preface  are  long  since  familiar  to  Americans 
as  household  words,  and  doubly  cherished  as  among 
the  fundamental  rights  of  each  new  State  constitu- 
tion. And  one  should  observe,  moreover,  that  this 
"Declaration  of  Independence"  recognized  thus 
primarily  the  composite  nature  of  the  political  system 
into  which  henceforth  the  old  colonies  were  to  be 
welded;  for  its  solemn  amiouncement  to  the  world  is 
not  that  these  several  colonies,  but  that  "these 
United  Colonies  "  are,  and  of  right  ought  to  be,  "free 
and  independent  States ; "  and  independence  is  here 
published  and  declared  by  "the  Representatives  of 
the  United  States  of  America,  in  General  Congress 
assembled,"  and  expressed  "in  the  name  and  by  the 
authority  of  the  good  people  of  these  Colonies."  ^ 

1  Cf.  7  Jefferson's  Works,  74. 

2  Cf.  Instrument,  Bowen's  Documents,  102. 


82  CONSTITUTIONAL  STUDIES. 

In  short,  the  United  States  of  America  never  con- 
sisted of  States  wholly  sovereign  and  apart  from  one 
another,  and  capable  each  of  indei)endent,  separate, 
and  distinct  action.  As  for  most  of  those  jurisdic- 
tions at  present  comprising  the  American  Union, 
their  origin,  subsequent  to  the  adoption  of  our 
present  Federal  constitution,  placed  them  severally 
in  a  filial  and  subordinate  relation;  each  was  nur- 
tured and  reared  on  the  national  territory,  under 
national  regulations,  and,  when  adult,  admitted  upon 
fundamental  terms  prescribed  by  Congress  as  a  full 
State  and  fellow-member  of  the  Supreme  Federal 
Union.  Of  foreign  annexations  to  the  United  States, 
Texas,  as  a  de  facto  republic,  but  not  formally  recog- 
nized as  such  by  Mexico,  adopted  the  constitutional 
conditions  held  out  by  Congress,  while  Louisiana 
and  Florida  served  first  a  territorial  probation.  No 
members  whatever  of  this  Federal  Union  have  had 
the  historical  right  to  be  considered  sovereign  and 
independent  in  more  than  a  secondary  sense,  except 
the  old  historical  thirteen,  who  together  dissolved 
allegiance  with  Great  Britain,  conquered  their  united 
independence,  and  formed  for  themselves  a  confeder- 
ate league,  and  then,  as  ordained  by  the  people,  a 
closer  union.  But  even  they,  until  absolved  in  1776 
from  allegiance  to  the  mother  country,  were  all  ruled 
severally  as  offspring  and  dependencies  of  the  British 
Crown;  and  from  that  subject  condition  they  each 
and  altogether  passed  at  once  into  a  new  subordina- 
tion to  the  continental  union  symbolized  by  their  own 
Congress.  Simultaneously,  indeed,  with  independ- 
ence, articles  of  peimanent  Federal  union  which 
should  have  a  delegated  operation  were  contemplated ; 
and  during  the  delay  of  formulathig  that  new  plan, 
the  Continental  Congi'ess,  without  more  explicit 
credentials  than  necessity  and  public  opinion  might 


INDEPENDENCE  AND  REVOLUTION      83 

have  conceded  to  that  body,  guarded  by  the  annual 
choice  of  delegates  in  each  State  through  convention 
or  legislature,  raised  a  common  army  and  a  navy, 
contracted  common  debts,  apportioned  State  quotas 
of  money,  men,  and  supplies,  carried  on  foreign  rela- 
tions as  a  single  sovereign  power,  and  assumed  plenary 
powers  of  war  and  peace.  From  Articles  of  Con- 
federation, styled  perpetual,  and  so  accepted  by 
them,  these  thirteen  States  emerged  into  the  better 
Union  devised  by  our  still  operative  constitution  of 
1787.  Through  all  such  fundamental  changes  in 
Anglo-American  institutions  there  was  not  a  moment 
when  any  of  these  Atlantic  communities  could  be 
deemed  sovereign,  independent,  and  free  from  a 
supervising  political  authority  in  a  legal  and  practical 
sense,  except,  perhaps,  for  Rhode  Island  and  North 
Carolina,  during  the  year  or  two  following  1788  that 
they  refused  to  ratify  the  new  Federal  constitution, 
while  the  other  States,  choosing  Washington  for 
President,  and  rallying  to  the  united  support  of  his 
first  administration,  entered  upon  the  new  era  of 
national  existence  without  them. 


III. 

ARTICLES  OF  CONFEDERATION. 

1781-1789. 

The  original  United  States  of  the  Revolution  were, 
for  five  years  following  July,  1776,  held  together  by 
a  sort  of  de  facto  alliance,  and  by  the  practical  dele- 
gation of  common  authority  to  Congress  bj'  the  old 
thirteen  States  without  a  strictly  formal  sanction. 
Some  legal  writers  of  unquestioned  repute  consider 
that  first  continental  government  of  this  Union  as 
strictly  revolutionary  in  character.  ^  Yet  the  impor- 
tant historical  circumstance  should  not  be  overlooked 
that  a  written  and  formal  plan  of  permanent  confed- 
erated union  was  meant  by  the  Continental  Congress 
to  be  essentially  contemporaneous  with  the  Declara- 
tion of  Independence  itself;  that  the  Declaration  by 
its  own  language  indicates  that  purj)ose ;  and  that  not 
only  in  the  Congressional  debates  which  preceded  the 
British  separation,  but  as  one  of  the  formal  resolves 
which  prefaced  that  momentous  action,  a  plan  of  con- 
federated union  was,  June  11,  1776,  to  be  drawn  up 
for  formal  adoption.  Thus,  while  one  committee 
prepared  the  instrument  of  independence,  another 
was  engaged  upon  that,  of  union,  reporting  it  for 
debate  only  eight  days  after  the  famous  July  4th. 
Discussed  by  Congress  during  the  same  July  in  com- 
mittee of  the  whole,  this  plan  of  union  suffered 
further  delay,  as  such  plans  are  likely  to  while  war 

1  Cooley's  Elements  of  Constitutional  Law,  9. 


ARTICLES  OF  CONFEDERATION.  85 

absorbs  men's  minds;  but  at  length,  agreed  to  in 
Congress,  November  15,  1777,  witii  some  unimpor- 
tant amendments,  the  scheme  of  Confederation  went 
out  to  the  States  for  their  formal  and  separate  sanc- 
tion. A  few  of  the  smaller  States,  however,  deferred 
ratifying,  nor  was  it  until  1781  that  Maryland,  after 
gaining  an  important  concession  to  the  Confederacy 
independently  of  the  instrument,  made  the  compact 
and  sanction  of  continental  Union  complete.^  Yet 
through  the  wliole  intervening  period  Congress  had 
exercised  for  the  emergency  its  contemplated  powers, 
as  though  formally  clothed  with  them,  while  the 
American  people  acquiesced  because  such  had  been 
their  own  fundamental  intent.  A  continental  army 
fought  meantime  for  independence  under  a  continental 
commander-in-chief,  obedient  to  this  unempowered 
Congress,  and  in  the  name  and  under  the  flag  of  the 
Confederacy;  and  on  behalf,  moreover,  of  the  new 
"United  States  of  America"  were  sought  foreign 
recognition  in  Europe,  foreign  loans,  and  foreign 
alliances. 

At  length,  under  the  ratified  and  completed  Articles 
of  Confederation,  and  as  a  fully  legitimated  parch- 
ment government.  Congress  reassembled,  March  2, 
1781,  for  its  usual  business,  making  no  special  recog- 
nition of  its  new  status;  but  rather  as  though  to 
navigate  for  the  future  with  a  chart  where  they  had 
been  piloting  as  best  they  might  without  one. 
Examining  these  Articles  of  Confederation,  we  see 
that  the  main  design,  agreeably  to  their  origination, 

1  Maryland's  delay  was  not  without  good  purpose;  which  was  to 
force  large  States  like  Virginia,  having  claims  in  the  unsettled  north- 
west territory  beyond  the  Appalachian  range,  to  cede  their  individual 
rights  in  favor  of  the  common  Union.  8eo  monograph  (1878)  of  Dr. 
II.  B.  Adams.  The  Articles  of  Confederation  expressly  provided  that 
"  no  State  shall  be  deprived  of  territory  for  the  benefit  of  the  United 
States."     Articles,  IX.  2. 


86  CONSTITUTIONAL  STUDIES. 

was  simply  to  invest  this  representative  Continental 
Congress  of  the  thirteen  States  with  such  powers  as 
naturally  and  of  necessity  pertained  to  a  continental 
and  united  exercise  of  public  authority,  and  as  public 
opinion  already  upheld.^ 

The  general  scope,  then,  of  these  "Articles  of 
Confederation,"  as  we  gather  by  a  study  of  the 
adopted  instrument,  coincides  with  that  of  the  ex- 
temporized and  preliminary  Revolutionary  govern- 
ment of  the  Union ;  jealous  provision  being  quickly 
applied  to  constrain  and  limit  those  formidable 
powers,  by  reserving  expressly  that  each  State  shall 
retain  "its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right,  which  is 
not  by  this  Confederation  expressly  delegated  to  the 
United  States  in  Congress  assembled.  "^  Except, 
indeed,  for  what  Maryland  is  seen  to  have  finally 
gained  in  behalf  of  the  common  territory,  the  changes 
wrought  out  by  time  and  discussion  in  Congress 
after  the  jjlan  was  first  reported  from  committee,  seem 
to  have  been  mostly  in  the  cautious  direction  of  cir- 
cumscribing this  new  Federal  supremacy;  nor  was 
Maryland's  happy  gain,  out  of  which  grew  our  grand 
system  of  public  land  settlement  and  the  procreation 
of  new  States  westward,  in  the  nature  of  an  amend- 
ment to  those  Articles,  but  rather  so  as  to  induce 

1  The  committee  appointed,  June  11,  1776,  to  prepare  a  form  of 
Confederation  consisted  of  one  member  from  each  colony.  John 
Dickinson  appears  to  have  had  the  chief  hand  in  drafting  the  com- 
mittee's instrument ;  but  the  work  was  most  likely  a  composite  one, 
seeking  to  formulate  a  scheme  which  Congress  was  already  develop- 
ing into  action.  Little  is  really  known  concerning  the  details  of  these 
"  Articles  of  Confederation "  as  the  composition  took  its  final  and 
historical  form. 

Dickinson's  draft  of  1776,  as  well  as  one  wliich  Franklin  had  pre- 
pared in  177.5,  proposed  ampler  powers  than  the  final  Articles  granted. 
Story,  Constitution,  §  284. 

2  Articles,  II. 


ARTICLES   OF   CONFEDERATION.  87 

legislation  by  the  old  Continental  Congress  of  doubt- 
ful constitutional  warrant,  as  A  rticles  were  expressed, 
though  justified  by  the  terms  of  Virginia's  voluntary 
cession. 

In  these  Articles,  the  chief  fact  that  confronts  us 
is  that  the  Montesquieu  idea  of  a  distinct  separation 
of  powers  for  well-ordered  government  is  wanting. 
Such  government  was  thought  to  answer  for  States 
at  the  outset,  but  not  for  the  Union.  We  find,  then, 
no  distinct  Executive  nor  distinct  Judiciary  provided ; 
but  all  common  powers  of  the  Confederacy,  as  they 
were  first  laid  off,  vested  in  that  general  Legislature 
styled  the  Continental  Congress.  Nor  was  this 
Congress  a  fully  developed  legislative  body.  It  con- 
sisted of  but  a  smgle  house ;  its  members  were  chosen 
in  practice  not  by  individual  voters,  but  by  a  State 
legislature ;  ^  members  did  not  vote  on  questions  as 
representatives  chosen  upon  a  poll  or  property  basis, 
but  simply  as  a  State  delegation  or  unit.  All  States 
were  coequal  and  alike  in  that  body,  no  matter  what 
the  relative  number  of  soldiers  they  might  supply  or 
the  relative  sums  poured  out  in  the  costly  struggle 
for  freedom ;  and  it  was  the  noble  self-denial  of  the 
greater  States,  not  the  urgency  of  the  smaller,  that 
first  made  continental  union  possible.  In  fine,  the 
advance  of  political  construction  from  the  old  pro- 
jected Committee,  or  Grand  Council,  of  colonial  times 
liad  not  been  so  very  great  for  this  first  fundamental 
government  of  the  American  Union. 

This  Continental  Congress  all  tlie  more  resembled 
a  colonial  Board  of  Commissioners,  or  Grand  Coun- 
cil, from  its  choice  to  sit  constantly  as  a  secret  body, 
publishing  no  report  of  its  debates,  and  gaining  neither 

^  Yet  delegates  were  nominally  to  be  appointed  in  such  manner  as 
each  Legislature  should  direct,  aud  hence  might  have  heen  popularly 
chosen.     Articles,  V. 


88  CONSTITUTIONAL  STUDIES. 

buoyancy  nor  direct  guidance  from  public  opinion. 
Delegates,  not  less  than  two  nor  more  than  seven 
from  each  State,  made  up  the  quorum  that  voted  as  a 
State  unit,  thus  diminishing  still  further  all  sense  of 
individual  responsibility  to  constituents ;  and  it  was 
provided  that  no  person  could  serve  more  than  three 
in  any  term  of  six  years.  Each  State  paid  the  recom- 
pense of  its  own  delegation,  1  and  might  at  any  time 
recall  a  delegate  and  send  another  in  his  place.  And 
thus  did  it,  become  matter  of  familiar  remark,  after 
the  first  impulse  of  patriotic  energy  had  subsided, 
that  the  ablest  of  Revolutionary  civilians  gave  their 
talents,  in  preference,  to  the  service  of  their  respective 
States,  leaving  Congress  to  shift  as  it  might  in  the 
continental  conduct  of  affairs,  often  without  a  quorum 
of  delegates  at  all  to  represent  the  State  on  an  impor- 
tant issue. 

Congress  was  invested  with  authority  to  appoint  a 
"Committee  of  the  States,"  consisting  of  one  delegate 
from  each  State,  to  sit  in  the  recess ;  but  this  expe- 
dient did  not  work  well.  It  had  authority,  more- 
over, to  appoint  a  presiding  officer;  yet  the  President 
of  Congress  was  scarcely  more  than  a  ceremonial 
functionary. 2  Seven  out  of  these  thirteen  States, 
coequal  in  voting,  might,  despite  all  such  obstruc- 
tions, have  proved  by  their  majority  competent  for 
conducting  affairs,  had  not  these  Articles,  as  though 
fearful  of  efficiency,  made  the  affirmative  assent  of 
nine  States  present  and  voting  by  a  quorum  of  their 
respective  delegations  needful  in  all  the  most  impor- 
tant public  business.  For  without  such  affirmative 
assent  of  nine  out  of  thirteen  States,  Congress  was 
forbidden  to  engage  in  war,  enter  into  treaties  or 
alliances,  coin  money  and  regulate  its  value,  ascer- 
tain money  quotas,  emit  bills,  borrow  or  appropriate 
1  Articles,  V.  2  Articles,  IX.  5 ;  X. 


ARTICLES  OF  CONFEDERATION.  89 

money  on  the  credit  of  the  United  States,  agree  upon 
the  number  of  land  or  naval  forces  to  be  raised,  or  even 
appoint  a  commander-in-chief  of  army  or  navy.^ 

However  fairly  one  may  construe  this  government 
with  reserved  State  sovereignty  as  a  confederated 
league,  he  should  observe  that  Avhatever  general 
powers  were  actually  given  by  this  instrument  were 
given  as  though  permanently  and  forever;  for  these 
Articles  were  styled  "  Articles  of  Confederation  and 
Perpetual  Union."  They  expressly  invited  the 
further  accession  of  Canada,  and  provided  (v/ith  the 
assent  of  nine  States)  for  the  possible  admission  of 
other  colonies ;  and  they  made  solemn  stipulation  to 
abide  severally  by  the  constitutional  determinations 
of  Congress,  and  that  the  Articles  "  shall  be  inviolably 
observed  by  every  State,  and  the  Union  shall  be  per- 
petual."^ The  American  people  well  understood 
already  that  in  union  there  was  strength,  and  with- 
out it  sure  disaster.  But  the  practical  defect  of  the 
whole  primitive  system  of  union,  and  that  which 
finally  ruined  it  was,  as  historj^  shows  us,  the  want 
of  a  practical  amending  power;  for  no  alteration  in 
these  Articles  could  ever  be  made,  as  the  instrument 
prescribed,  unless  (1)  agreed  to  in  Congress,  which 
was  proper  enough,  and  (2)  confirmed  afterwards  l)y 
the  Legislature  of  every  State. ^  But  this  latter  pre- 
requisite proved  at  the  crucial  test  impossible. 

Vast,  undoubtedly,  were  the  original  powers  thus 
delegated  to  the  Union,  had  the  several  States  but 
bestowed  them  in  a  manner  to  permit  of  their  efficient 
exercise.  For  the  nominal  authority  of  these  "  United 
States  in  Congress  assembled,"  under  the  sanction  of 
the  "firm  league,"  now  entered  into,  was  sole  and 
exclusive  (with  some  minor  reservations)  in  determin- 
ing peace  and  war ;  in  foreign  intercourse  and  foreign 

1  Articles,  IX.  6.         2  Articles,  XI.,  XIU.         3  Articles,  XTTL 


90  CONSTITUTIONAL   STUDIES. 

alliances;  in  regulating  captures  and  prizes,  or  grant- 
ing in  times  of  peace  letters  of  marque  and  reprisal ; 
in  "appointing  courts"  for  the  trial  of  piracies  and 
felonies  committed  on  the  high  seas,  and  for  deter- 
mining captures ;  in  regulating  the  value  of  coin  and 
the  standard  of  weights  and  measures;  in  manacinsr 
all  trade  and  affairs  with  the  Indians ;  in  establishing 
and  regulating  post-offices;  in  appointing  all  army 
and  navy  officers  in  the  service  of  the  United  States, 
excepting  regimental  officers  of  the  land  service ;  and 
generally  in  regulating  and  directing  all  warlike 
operations.  1  Congress  was  further  empowered  to 
ascertain,  appropriate,  and  apply  such  sums  as  might 
be  needful  for  the  public  expenditure;  to  borrow 
money  or  emit  bills  on  the  credit  of  the  United 
States,  transmitting  its  accounts  half-yearly  to  the 
States ;  to  build  and  equip  a  navy ;  to  make  requisi- 
tions on  the  several  States  for  quotas  of  troops  appor- 
tioned on  a  basis  of  white  population. ^  All  charges 
of  war  and  other  expenses  "  for  the  common  defence 
and  general  welfare  "  were  to  be  defrayed  out  of  a 
common  treasury  which  the  several  States  were  to 
supply  in  proportion  to  the  value  of  lands  and 
improvements  in  each  jurisdiction,  as  Congress  might 
estimate  from  time  to  time.  The  States  themselves, 
under  direction  of  their  several  Legislatures,  were  to 
levy  and  collect  their  several  portions  of  the  common 
tax ;  ^  and  thus,  as  experiment  proved,  States  became 
delinquent  in  supplying  their  contributions,  while 
the  delinquency  of  one  State  prompted  the  delin- 
quency of  others.  All  bills  of  credit  emitted,  all 
money  borrowed,  and  all  debts  contracted  by  Con- 
gress before  these  Articles  of  Confederation  went 
formally  into  operation  were  declared  solemnly  bind- 
ing upon  the  United  States. 

1  Articles,  IX.  1-4.  2  Articles,  IX.  5.  8  Articles,  VIII. 


ARTICLES   OF   CONFEDERATION.  01 

Coupled  with  siicli  grant  to  Congress  of  general 
powers  which  initiate  much  of  the  sovereignty  still 
exercised  by  our  Federal  government  under  a  far 
better  sanction,  were  variouij  prohibitions  upon  the 
individual  States.  They  were  not  to  hold  independ- 
ent foreign  intercourse  nor  make  independent  treaties 
regardless  of  Congress ;  they  were  not  without  con- 
sent of  Congress  to  enter  into  alliances  or  confedera- 
tions among  themselves;  they  were  not  to  keep  up 
armies  and  navies  of  their  own  in  time  of  peace,  but 
to  rely  locally  upon  a  well  regulated  and  disciplined 
militia;  they  were  not  at  their  own  instance  to  en- 
gage in  war  nor  to  issue  letters  of  marque  and  reprisal 
in  time  of  peace  unless  invaded  or  in  imminent 
danger.  1  When  raising  land  forces  for  common  de- 
fence, each  State  was  still  to  appoint  its  own  regi- 
mental officers.  2 

The  interstate  advantages  of  a  consociation  like 
this  were  at  once  appreciated,  as  they  have  been  ever 
since,  and  as  the  New  England  Confederacy  had 
prized  them.  Articles  of  Confederation  declared  the 
free  inhabitants  of  each  State  entitled  to  all  privi- 
leges and  immunities  of  free  citizens  in  the  several 
States.  The  free  right  of  ingress  and  egress  was 
conceded  to  or  from  different  States,  together  with 
reciprocal  privileges  of  trade  and  commerce,  so  far  as 
the  new  and  imperfect  system  might  reasonably 
afford  them;  the  interstate  surrender  of  fugitives 
from  justice  was  stipulated ;  and  full  faith  and  credit 
was  to  be  given  in  each  State  to  the  records,  acts, 
and  judicial  proceedings  of  every  other  State. ^ 

But  restraints  upon  restriction  made  the  original 
grant  of  delegated  powers  to  this  Union  so  parsimo- 
nious, after  all,  in  some  particulars,  that  only  a  minute 

1  Articles,  VI.  2  Articles,  VII.  3  Articles,  IV. 


92  CONSTITUTIONAL  STUDIES. 

study  of  the  text  itself  can  enable  us  to  apprehend 
the  true  limits.  Comparison,  therefore,  with  the 
broader  transfer  of  Federal  powers  to  our  later  con- 
stitution will  be  useful  when  analyzing  that  more 
perfect  instrument.  But  it  is  worthy  of  final  mention 
here,  as  showing  the  league  character  of  our  "  Articles 
of  Confederation,"  and  the  alliance  of  quasi-sowQVQign. 
States,  that  the  mode  of  State  ratification  kept  up 
sedulously  the  idea  of  a  delegated  authority  to  the 
new  government.  Congress,  as  the  single  delegated 
council  of  these  tliirteen  coequal  States,  framed  the 
Articles,  and  then  proposed  them,  not  to  conventions, 
but  to  the  several  State  Legislatures  for  adoption. 
These  State  Legislatures,  as  representative  agents 
each  of  the  State  and  its  inhabitants,  authorized  duly 
their  several  delegations  in  Congress  to  sign  the 
Articles  "on  the  part  and  behalf  of  the  State."  All 
was  done  by  compact  and  power  of  attorney,  high 
above  the  heads  of  the  common  people,  and  without 
direct  reference  in  the  least  for  their  fundamental 
approval.  Not  a  word  or  suggestion  of  a  State  con- 
vention fresh  from  the  inhabitants,  nor  of  immediate 
and  authoritative  sanction  derived  from  them,  appears 
in  the  whole  solemn  establishment  as  if  by  treaty  of 
this  common  government  of  the  United  States ;  and 
yet  each  State  delegation  in  Congress,  wliile  ratify- 
ing, as  a  unit,  these  Articles  of  Confederation,  "by 
virtue  of  the  power  and  authority"  given  for  that 
purpose,  as  their  signatures  recited,  solemnly  and 
expressly  pledged  and  engaged  the  faith  of  its  State 
constituents  to  abide  by  the  "perpetual"  Union 
thereby  established.^ 

1  See  Articles,  ratifying  clause  at  the  close. 


IV. 


THE  FEDERAL   CONSTITUTION;  ITS  NATURE  AND 
ESTABLISHMENT. 

1787-1789. 

It  is  matter  of  familiar  American  history  that  the 
Articles  of  Confederation,  feeble  enough  for  their 
amplest  and  most  essential  exercise  of  supremacy 
during  the  long  and  exhausting  struggle  for  a  com- 
mon independence,  failed  utterly  as  the  efficient 
instrument  of  peace  and  recuperation.  Their  radical 
defect  consisted  in  attempting  to  operate  uj^on  States 
in  a  collective  capacity,  and  to  exert  an  authority 
whose  sinews  depended  upon  a  co-sovereign  suj^ply. 
Under  the  unexampled  stress  and  strain  of  State 
necessity,  the  common  government  of  this  Union 
found  but  a  careless  heed  to  its  wants,  notwithstand- 
ing the  solemn  pledge  and  obligation  to  relieve  them. 
A])stractly,  to  be  sure,  and  as  a  matter  of  funda- 
mental right,  Congress  might  have  summoned  all  the 
military  forces  of  the  Union  to  compel  the  money 
quota  of  a  delinquent  sovereign;  practically,  how- 
ever, any  attempted  compulsion  of  the  kind  could 
only  have  hastened  anarchy.  And  thus  did  the 
Union,  projected  nobly  in  the  ver}^  sublimity  of 
patriotic  passion,  sink  contemptuovisly  into  a  govern- 
ment of  exhortation,  not  command;  and  as  one 
writer  said  of  its  Congress,  with  reference  to  the 
delegated  supremacy  which  they  sought  to  exercise, 
"they   may   declare    everything,    but   do   nothing." 


94  CONSTITUTIONAL   STUDIES. 

History  teaches  tliat  the  hist  hope  of  saving  the  old 
Confederacy  from  irresistible  wreck  was  to  gain  an 
amendment  to  existing  Articles  which  might  make 
Congress  potent  to  collect  a  modest  impost  duty  for 
general  purposes  during  a  moderate  and  specific 
length  of  time.  The  positive  refusal  of  a  single 
State  bent  on  self-aggrandizement  defeated  that 
amendment,  and  the  doom  of  the  Confederacy  was 
sealed. 

How,  then,  could  the  American  people  escape 
national  calamity  ?  Only  by  resorting  to  their  own 
final  remedies  for  self-preservation,  —  their  own  inhe- 
rent right,  in  fact,  which  the  Declaration  of  Inde- 
pendence had  so  boldly  asserted,  to  alter  or  abolish  a 
form  of  government  destructive  of  its  own  rightful 
ends,  and  to  institute  a  new  one.  They  still  wished 
the  United  States  perpetual,  as  first  proclaimed;  and 
they  set  in  operation  a  representative  engine,  new  in 
a  national,  but  old  enough  in  a  State,  application, 
that  of  "Convention."^  With  popular  credentials 
superior  to  any  such  partial  agency  of  government 
as  a  legislature,  men  met  in  convention  at  Philadel- 
phia in  1787,  and  prepared  a  renovated  plan  of  con- 
tinental union,  comprehensive  and  efficient  as  never 
before,  and  rightly  purporting  to  emanate  as  an  ordi- 
nance of  the  people.  Its  reference  for  adoption  and 
a  practical  establishment  was  not  to  State  legisla- 
tures, but  to  State  conventions.  There  was  this 
element  of  revolution  —  happily  a  peaceful  one  —  in 
the  new  scheme,  that  so  soon  as  nine  conventions 
should  ratify  and  commit  their  respective  Shites  to 
it,  the  new  Union  would  start  out  on  its  new  career, 
leaving  the  old  league,  misnamed  "perpetual,"  to 
perish  with  its  obstinate  remnant.  Revolution  was 
thus  far  inseparable  from  the  crisis,  from  "  the  grind- 

^  See  supra,  page  46. 


THE  FEDERAL    CONSTITUTION.  95 

ing  necessity,"  as  John  Quincy  Adams  has  styled  it, 
which  had  compelled  an  ampler  Federal  government 
as  the  only  escape  from  anarchy.  Persuasion  accom- 
plished the  work  of  conviction;  ten  States  ratified, 
and  stubborn  New  York  acceded  as  the  eleventh; 
after  which  safe  alliance  the  perilous  situation  of 
Rhode  Island  and  North  Carolina,  widely  separated 
as  they  were,  and  their  own  returning  sense  of 
national  sisterhood,  brought  them  as  the  last  loi- 
terers into  the  fold,  and  the  new  United  States  of 
America  stood  re-created. 

But  if  this  dissolution  of  the  old  confederate  leasrue, 
or  rather  its  supersedure  by  a  new  and  more  efficient 
Union,  is  to  be  styled  revolutionary  at  all,  it  was 
only  so  in  a  partial  sense.  The  Articles  had  ex- 
pressly forbidden  the  confederation  or  alliance  of  two 
or  more  States,  "  without  the  consent  of  the  United 
States  in  Congress  assembled ; "  and  aside  from  any 
application  here  of  such  a  clause,  it  was  impolitic 
and  unfair  to  ignore  the  rightful  repository  of  Federal 
power  when  promulgating  the  new  Philadelphia  plan. 
Nor  did  the  framers  of  1787  propose  any  such  diso- 
bedience. No  sooner  was  their  finished  scheme  put 
forth  at  Indef)endence  Hall  than  they  hastened  to 
procure,  first  of  all,  the  sanction  of  the  Continental 
Congress,  then  in  session  at  New  York.  That  sanc- 
tion, which  permitted  the  free  proposal  of  this  new 
plaii  to  the  several  State  conventions,  was  given, 
and  given  speedily,  before  a  single  State  took  action 
upon  the  instrument. 

Any  notion  that  our  Federal  constitution  of  1787 
was  a  spontaneous  birth  must  be  a  false  and  fanciful 
one.  Our  brief  exposition  of  the  facts  has  shown 
that  it  was  a  gradual  conception;  in  other  words, 
that  it  ripened  as  the  matured  fruit  of  political  expe- 


96  CONSTITUTIONAL   STUDIES. 

rience.     Two  leading  influences  are  traceable  in  its 
composition:  (1)  the  American  Confederac}^,  formu. 
lated,  defined,  and  sanctioned  by  the  Articles  adopted 
in  1781,  but,   in  point  of  fact,   originating  several 
years  earlier  in  united  Revolutionary  resistance  to 
the  mother  country;   (2)  the  written   constitutions, 
already   in    full    operation,    of    thirteen    individual 
States.     From  the  former  came  that  mass  of  dele- 
gated Federal  powers,  which  upon  experiment  were 
found  to  need  enlargement  and  addition;   from  the 
latter,    outlined   in   bold  relief,   the   main   elements 
essential  to  a  stable  and  well-ordered  government  on 
the  Montesquieu  plan  of  a  threefold  division,  inclu- 
sive  of  a   bicameral   legislature,    and   also   (by  the 
time  the  plan  became  modified  by  the  first  ten  amend- 
ments) of  a  declaration  of  rights.     But  the  applica- 
tion of  existing  models  to  a  new  and  difficult  piece  of 
workmanship  which  excelled  them  all,  was  a  marvel- 
lous creation. 

The  main  change  here  effected  from  the  former 
confederate  government  consisted  in  replacing  the 
league  of  co-sovereign  States  by  a  national,  or, 
rather,  it  should  be  said,  a  federo-national  govern- 
ment, which  should  operate  largely  upon  the  people 
as  individuals,  and  not  upon  States  collectively; 
and  this  made  an  immense  remedial  difference.  But 
the  several  States  were  still  left  with  great  dis- 
cretionary pov/ers  in  united  concerns;  as,  for  in- 
stance, in  appointing  Presidential  electors,  and  in  the 
voting  qualifications  needful  for  choosing  Represen- 
tatives to  Congress.  When  the  Federal  constitution 
first  went  into  operation,  our  States  had  still  the 
crust  of  British  aristocracy;  and  the  constitution  of 
the  United  States,  as  concerned  its  own  structure, 
permitted  of  quite  an  aristocratic  operation,  had 
States  so  willed  it;  but  the  contrary  happened,  and 


THE  FEDERAL    CONSTITUTION.  97 

American  institutions,  both  State  and  Federal,  be- 
came gradually  democratized  through  the  irresistible 
genius  of  popular  self-government.  Most  fortunate 
was  it  for  the  general  happiness  of  America  that  this 
instrument  of  union,  so  rigid  in  its  textual  mould 
and  so  difficult  to  alter,  left  its  political  scope  so  free 
for  circumstances  to  shaj)e.  That  the  new  scheme 
meant,  however,  that  Federal  power  should  be  exerted 
more  independently  and  effectively  than  before,  and 
v.'ithin  a  wider  range  of  supreme  action,  whether 
this  or  that  set  of  men  might  happen  through  State 
selection  to  control  its  exercise,  is  obvious,  not  only 
from  a  general  survey  of  the  constitution  itself,  but 
from  certain  specific  expressions  compared  with  those 
of  the  superseded  Articles.  It  is  no  longer  the  States 
that  "severally  enter  into  a  fu-m  league,"  ^  but  "we, 
the  people,"  who  "ordain  and  establish."  Perpetual 
in  intent  as  before,  the  new  purpose  is  to  establish 
i)ermanency  by  suitable  means  for  the  people  and 
their  posterity.  The  word  "  Confederacy  "  disappears 
forever  from  the  style  of  "  United  States  of  America." 
A  "more  perfect  union"  is  one  of  the  main  objects 
stated  in  the  new  preamble;  and  even  when  State 
jealousy  pressed  an  immediate  amendment  expressive 
of  reserved  rights  not  delegated  to  the  Union,  the 
text  of  that  amendment  expressed  such  reservation 
not  to  States  alone,  as  in  the  Articles  of  Confedera- 
tion before,  but  to  "the  States  respectively  or  to  the 
people."^  In  the  instrument  as  originally  drawn  up 
and  formally  adopted  was  no  allusion  to  reserved 
rights  at  all. 

1  Articles,  III. 

2  Cf.  Articles,  TI.,  and  Constitution,  Amendments,  X.  The  letter 
of  the  Philadelphia  convention,  which  in  1787  snbniitteil  the  new  in- 
strument for  the  consideration  of  the  Continental  Congress,  avowed  as 
the  object  of  the  new  scheme  and  the  greatest  interest  of  every  true 
American,  "  the  consolidation  of  our  Union." 

7 


98  CONSTITUTIONAL  STUDIES. 

Not  a  member  of  that  glorious  assembly  at  Phila- 
delphia approved  in  all  respects  our  original  Federal 
constitution  when  they  signed  it.  By  a  very  close 
majority  in  some  of  the  State  conventions  did  it  se- 
cure an  unqualified  ratification  at  all;  and  that  only 
upon  the  assurance  of  amendments  such  as  the  first 
Congress  under  our  new  government  at  once  sent 
forth,  and  whose  adoption  quickly  followed. ^  But 
here,  as  always,  how  best  actually  to  secure  the  good 
and  remedy  the  evil  was  the  problem  of  the  times ;  for 
all  good  institutions  come  by  accretion;  and  as  Burke 
has  wisely  observed,  "Government  is  a  practical 
thing  made  for  the  security  and  hajDpiness  of  man- 
kind, and  not  to  please  theorists." 

1  See  CoDStitution,  first  teu  amendments,  proposed  in  1789  and 
declared  adopted  in  1791. 


V. 


FEDERAL  CONSTITUTION  ANALYZED;  STRUCTURE 
AND  DLSTRIBUTION  OF  POWERS;   LEGISLATURE. 

Let  us  now  examine  in  detail  the  constitution  of 
the  United  States  under  which  we  live,  and  which 
has  preserved  American  liberties  for  more  than  a 
century;  an  instrument  rather  inflexible  in  form,  as 
any  written  constitution  must  be  whose  change  is  not 
readily  brought  about,  and  yet  within  that  form 
capable  of  giving  the  nation  a  splendid  development. 
The  exceeding  brevity  of  its  expression,  its  pragmatic, 
concise  language,  enumerating  powers  rather  than 
defining  them,  and  avoiding  all  "glittering  generali- 
ties "  and  the  disposition  to  dogmatize,  despite  some 
notable  examples  among  contemporary  States  of  1787, 
have  elicited  the  admiration  of  scholars  and  statesmen 
of  the  old  world.  1  It  may  be  that  the  bitter  humilia- 
tions which  the  proud,  primitive  Union  was  then 
undergoing  made  tlie  present  framers  indisposed  to 
high-sounding  abstractions,  since  their  assembled 
purpose  was  to  check  lawless  liberty  and  teach  citizens 
to  obey;  and  practical,  moreover,    in  pushing  their 

1  Mr.  Bryce,  who  is  fond  of  impressive  comparison,  observes  that 
our  "Federal  constitution  with  its  amendments  may  be  read  aloud  iu 
twenty-three  minutes ;  that  it  is  about  half  as  long  as  St.  Paul's  first 
Kpistle  to  the  Corinthians,  and  only  one  fortieth  part  as  long  as  the 
Irish  Land  Act  of  1881.  "  History  shows  few  instruments,"  he  adds, 
"  which  in  so  few  words  lay  down  equally  momentous  rules  ou  a  vast 
range  of  matters  of  the  highest  importance  and  complexity."  1  Bryce, 
Commonwealth,  363. 


100  CONSTITUTIONAL   STUDIES. 

plans,  tliey  knew  it  was  best  to  go  forth  to  the  States 
with  an  instrument  wliich  avoided  interpretation  and 
left  something  to  be  imagined.  Articles  of  Confed- 
eration had  been  similarly  brief,  though  often  far 
more  involved  and  obscure  in  statement. 

The  new  Federal  government,  as  thus  arranged, 
was  composite;  in  strictness  neither  national  nor 
confederate,  but  a  composition  of  both.  "In  its 
f omvlation, "  explains  Madison  in  the  "Federalist," 
"  it  is  federal,  not  national ;  in  the  sources  from  which 
the  ordinary  powers  of  the  government  are  drawn,  it 
is  partly  federal  and  partly  national ;  in  the  operation 
of  these  powers  it  is  national,  not  federal;  in  the 
extent  of  them  again,  it  is  federal,  not  national ;  and 
finally,  in  the  authoritative  mode  of  introducing 
amendments,  it  is  neither  wholly  federal  nor  wholly 
national."  1  The  justice  of  this  contemporary  expo- 
sition will  appear  more  fully  as  our  analysis  of  the 
text  proceeds.  To  borrow,  again,  the  demonstration 
of  a  century's  experience,  the  constitution  of  the 
United  States  is  an  instrument  of  government,  agreed 
upon  and  established  in  the  several  States  by  the 
people  through  their  empowered  representatives  pri- 
marily in  convention,  to  be  operative  upon  the  people 
individually  and  collectively,  and  Avithin  the  sphere 
of  its  just  powers  upon  the  government  of  the  States 
also.^  Furthermore,  the  Union  thus  established  is 
an  indissoluble  one,  in  continuance  and  confirmation 
of  that  which  the  States  had  in  the  nature  of  a  per- 
manent league  established  previously.  If  ever  there 
was  ground  at  all  for  the  interj^retation  wliich  our 
Calhoun  school  of  statesmen  once  put  upon  it,  — 
namely,  that  States  still  reserved  a  sovereign  and 
paramount  right  to  nullify  and  to  withdraw  from  the 

1  Ffideralist,  No.  39. 

2  Story's  Commentaries,  §  311,  Judge  Cooley's  note. 


FEDERAL    CONSTITUTION  ANALYZED.     101 

Union,  —  that  theory  was  quenched  in  the  civil  strife 
and  bloodshed  of  1861-65,  so  that  the  very  States 
which  in  its  advocacy  provoked  the  agonizing  test 
were  overwhelmingly  defeated.  Their  State  consti- 
tutions now  repudiate  all  such  dogmas  in  language 
unequivocal.  Indeed,  the  ties  of  common  fraternal 
intercourse,  woven  with  tenfold  more  complexity 
than  before  into  the  intimate  fabric  of  Union,  render 
this  reunited  government  irresistibly  and  permanently 
—  short  of  such  unhappy  fate  as  the  sword  of  suc- 
cessful revolt  may  compel  in  some  remote  and  un- 
foreseen contingency  —  "  an  indestructible  Union  of 
indestructible  States."^  Long,  in  fact,  before  civil 
war  and  the  immense  sacrifice  of  blood  and  treasure 
which  it  cost  to  vindicate  this  establishment  of  the 
whole  people  as  permanent,  the  whole  irresistible 
tendency  of  national  policy  had  been  to  advance  the 
national  glory  and  influence  against  all  rivalry  of 
individual  States ;  and  some  of  the  Presidents  of  the 
old  era,  such  as  Jefferson,  Jackson,  and  Polk,  who 
most  protested  against  encroaching  upon  State  au- 
thority, did  most,  by  acquiring  foreign  territory 
or  otherwise,  to  consolidate  the  strength  of  the 
Union. 

Inexplicit  as  was  our  Federal  constitution  on 
many  points  which  public  policy  might  historically 
determine,  that  policy  or  national  usage,  developed 
from  precedents  long  acquiesced  in  by  the  people, 
tends  to  efface  all  constructive  doubt  and  fix  per- 
manently the  rule  of  the  constitution.  But  when 
interpreting  any  written  constitution,  we  should 
gather  its  sense  from  the  general  tenor  of  its  lan- 
guage, from  the  whole  scope  of  the  instrument,  and 

1  Chief  Justice  Cliase  for  the  Supreme  Conrt  of  the  United  States, 
in  7  Wall.  100. 


102  CONSTITUTIONAL   STUDIES, 

not  from  particular  terms. ^  We  should  construe 
according  to  the  just  intendment  of  the  instrument, 
neither  too  literally  nor  too  freely ;  giving  to  the  lan- 
guage used  its  reasonable  and  natural  sense. ^  We 
should  interpret,  furthermore,  in  the  light  of  the  law 
as  existing  when  the  constitution  or  its  particular 
phrase  was  adopted,  and  as  reaching  out  not  for  new 
guaranties  so  much  as  for  guaranties  already  recog- 
nized.^ And  we  should  so  construe  as,  if  possible, 
to  give  proper  efficiency  to  powers  which  are  nominally 
granted.* 

To  enter  now  upon  our  analysis  of  the  text,  the 
constitution  of  the  United  States  is  seen  to  begin 
with  a  striking  preamble.  Preambles  in  documents 
of  a  law-making  character  are  not  usually  of  prime 
importance,  being  little  more  than  explanatory  of  the 
purpose  in  changing  and  of  the  ills  to  be  overcome ; 
they  do  not  apart  confer  or  take  away  fundamental 
powers.  But  the  present  preamble  is  \drtually  an 
adaptation  from  the  third  of  the  Articles  of  Confed- 
eration.^ There  it  was  said  that  the  States  "  severally 
enter   into  a  firm   league   of  friendship   with    each 

1  Thus,  to  take  the  preamble  alone,  it  has  been  argued  that  "  -vve 
the  people  ...  do  ordain  and  establish  this  constitution  "  sufficiently 
proves  the  government  national  and  popular.  Yet,  when  we  see  among 
various  other  provisions  that  (Article  VII.)  the  ratification  of  the  con- 
ventions of  nine  States  shall  establisli  this  constitution  between  the 
ratifying  States,  we  find  that  a  composite  or  "  federo-uatioual "  govern- 
ment is  its  true  character. 

2  1.58  U,  S.  618. 

3  15G  U.  S.  237. 

*  "As  men  whose  intention  requires  no  concealment  generally  em- 
ploy the  words  whicli  most  directly  and  aptly  express  tlie  ideas  they 
intend  to  convey,  the  enlightened  patriots  who  framed  our  constitu- 
tion, and  the  peojde  Avho  adopted  it,  must  be  understood  to  have  em- 
ployed words  in  their  natural  sense,  and  to  have  intended  what  they 
have  .said."     Marshall,  C  J.,  in  9  Wheat.  1,  188. 

£>  Articles,  III. 


•       PREAMBLE   TO   CONSTITUTION.         103 

other;"  but  here  that  "we  the  people  ...  do 
ordain  and  establish  this  constitution,"  —  a  profound 
and  highly  suggestive  difference.  Three  of  the 
objects  stated  in  that  article  are  here  repeated  with 
slight  variation:  namely,  (1)  to  provide  for  the  com- 
mon defense ;  (2)  to  promote  the  general  welfare ;  ^ 
and  (3)  "to  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity.  "^  But  three  new  objects 
are  added,  hinting  at  former  imperfections  now  to  be 
remedied :  (4)  to  form  a  more  perfect  union ;  (5)  to 
establish  justice ;  ^  and  (6)  to  insure  domestic  tran- 
quillity.* An  ancient  philosopher  urges  that,  as  in 
musical  composition,  every  great  act  of  legislation 
should  have  its  lofty  and  appropriate  prelude;  and 
many  a  document  of  Revolutionary  origin,  many  a 
Revolutionary  statute  which  embodies  some  grand 
reform,  is  prefaced  by  a  high-sounding  preamble; 
that,  however,  which  made  this  Union  efficient,  chose 
only  the  dignity  of  a  compressed  recital. 

The  first  three  articles  which  follow  this  preamble 
in  the  text  distribute  the  powers  of  government  con- 
formably to  Montesquieu's  maxim,  as  the  States  had 
already  done;  but  without  dogmatic  announcement, 
and  far  more  appropriately  in  some  respects  than  any 
State  had  heretofore  seen  fit  to  apply  the  precept. 
The  executive  independence  here  accorded  was  reall}' 
remarkable,  in  view  of  prevalent  State  practice, 
which  hampered  that  department  so  greatly,  though 
it  is  possible  that  the  rude  experience  of  some  of 

1  "  Their  mutual  and  general  welfare."    Articles,  III. 

2  "  The  security  of  their  liberties."  Articles,  III.  lu  securing  "  to 
ourselves  and  our  posterity,"  the  "  perpetual "  intent  of  the  Union  is 
maintained  as  Ijefore. 

i*  A  real  Federal  judiciary  liad  been  wanting  under  the  old  system. 
*  lu  special  allusion,  apparently,  to  the   Shays  insurrection  and 
other  State  disturbances,  whicli  induced  tlie  convention  of  1787. 


104  CONSTITUTIONAL   STUDIES. 

those  young  sovereignties  had  already  bred  a  general 
discontent  with  the  tyrannous  tendencies  of  the 
Legislature.  "The  accumulation  of  all  powers, 
legislative,  executive,  and  judiciary,  in  the  same 
hands,"  says  the  "Federalist,"  in  that  momentous 
canvass  of  1788,  "whether  of  one,  a  few,  or  many, 
and  whether  hereditary,  self-appointed,  or  elective, 
may  he  justly  pronounced  the  very  definition  of  a 
tyranny."!  But  the  accumulation  of  Federal  power 
under  the  Confederation  had  been  contemptible 
enough;  and  we  still  find  the  line  of  division  some- 
times indefinitely  drawn,  so  that  the  Legislature,  by 
formulating  action,  retains  the  advantage. ^ 

Article  L,  which  defined  and  set  forth  the  legisla- 
tive power  of  the  United  States,  was,  however,  the 
foremost  and  the  longest  in  the  whole  new  compact ; 
and  here,  with  a  reforming  spirit  which  by  this  time 
pervaded  the  whole  Union,  the  convention  of  1787 
transformed  the  single  Congress  into  a  body  con- 
sisting of  two  chambers,  a  Senate  and  a  House  of 
Representatives.  By  a  compromise  most  admirable 
the  spirited  contest  between  larger  and  smaller  States 
over  a  basis  of  representation  was  so  settled  that  the 
new  Senate  symbolized  the  equality  of  States,  as  in 
Congress  heretofore,  while  the  new  House  of  Repre- 
sentatives was  based  upon  population  of  the  Union 
as  apportioned  under  a  census  to  be  taken  every  ten 
3^ears.  Senators  were  to  be  chosen  by  the  legisla- 
tures of  the  respective  States,  just  as  delegates  to 
the  Continental  Congress  had  usually  been;  while 
members  of  the  House  were  to  be  elected  "by  the 
people  of  the  several  States."     Under  a  further  com- 

1  Federalist,  No.  47.  Thi.g  paper  styles  Montesquieu  "the  oracle, 
if  not  tlie  author,"  of  tlic  precept  of  separated  ])owers. 

2  "Legislative  ))owcr  deals  mainly  with  the  future;  executive 
with  the  present ;  while  judicial  power  is  retrospective."  Cooley's 
Elements,  42. 


THE  FEDERAL  LEGISLATURE.  105 

promise  —  obsolete  in  effect  since  the  final  abolition 
of  slavery  —  poll  representation  under  the  census  was 
to  be  modified  by  an  allowance  of  three-fifths  in  each 
State  for  such  persons  as  were  held  in  bondage.  ^  As 
against  existing  State  and  Confederate  practice, 
which  favored  annual  elections,  members  of  the 
House  were  to  be  chosen  every  second  year,  while 
those  of  tlie  Senate  were  to  serve  six  years,  a  consid- 
erable term  which  approached  in  length  the  nominal 
septenary  of  the  British  House  of  Commons.  No 
constraint  upon  re-elections  to  Congress,  as  under 
the  old  articles,  was  imposed  for  the  future. ^ 

That  peculiar  feature  of  choosing  to  the  House 
which  left  the  actual  qualification  of  electors  (or 
voters)  in  each  State  to  depend  upon  the  State  rule 
for  electors  to  its  own  "most  numerous  branch  "  of 
the  Legislature,  has  already  been  noticed.^  Through- 
out the  Union  this  rule  tends  steadily  towards  full 
manhood  suffrage  regardless  of  property;  though 
with  reasonable  exceptions  of  crime  or  pauperism, 
and  in  a  very  few  States  of  illiteracy  besides,  —  excep- 
tions which  our  latest  Federal  amendments  declare 
shall  operate  no  denial  to  vote  on  account  of  race, 
color,  or  previous  condition  of  servitude.'^  As  to 
requisite  qualifications  of  those  chosen  to  either 
House  of  Congress,  a  liberal  advance  upon  State 
policy  was  at  once  made  in  our  Federal  instrument  ; 
for  no  tests  were  set  up  but  those  of  a  reasonable 


1  This  was  the  real  intendment  of  the  expression  "all  other  per- 
sons," the  word  "slave  "  being  judiciously  kept  out  of  the  text.  Con- 
stitution, I.  §§  2,  3.  Under  Amendment  XIV.  §  2  (186G),  the  rule  of 
apportionment  is  restated  so  as  to  meet  the  new  condition  of  national 
freedom;  "  Indians  not  taxed  "  being  still  excluded  from  the  reckoning 
as  before.     See  more  fully,  post. 

2  See  Article  V.,  page  88. 
8  Supra,  page  96. 

*  Amendments  XIV.,  XV.  (1866-69). 


106  CONSTITUTIONAL  STUDIES. 

limit  of  age  beyond  majority,  a  length  of  citizenship 
varying  slightly  for  the  two  branches,  and  residence 
when  elected  as  an  inhabitant  of  the  State  in  which 
one  was  chosen.  Religious  and  property  distinctions 
cease  wholly  to  apply,  and  no  State  has  the  right  to 
impose  them  in  any  national  candidacy.  ^  Nothing, 
however,  in  the  text  of  the  constitution  forbids  the 
choice  of  all  representatives  for  any  State  upon  a 
general  ticket ;  and  such  really  was  the  earlier  method 
of  choice  in  most  States  and  the  long-continued  prac- 
tice in  certain  of  them;  but  by  1872  Congress 
required  uniformity,  and  the  election  of  members  of 
the  House  must  now  be,  as  State  usage  prefers,  "  in 
districts  of  contiguous  territory. "^ 

The  times,  places,  and  manner  of  holding  elections 
for  senators  and  representatives  shall  be  provided  in 
each  State  (so  the  constitution  declares)  by  the  Legis- 
lature thereof ;  but  Congress  may  by  law  at  any  time 
make  or  alter  such  regulations,  except  as  to  the 
places  of  choosing  senators.^  Hence  we  find  further 
national  enactments  by  way  of  judicious  regulation : 
elections  (once  scattered  through  the  calendar  year 
most  inconveniently)  are  to  take  place  uniformly  on 
the  Tuesday  next  after  the  first  Monday  of  Novem- 
ber ;  *  all  votes  for  representatives  in  Congress  must 
be  by  written  or  printed  ballot;^  and  for  the  election 
of  United  States  senators  by  a  State  legislature  the 
time  and  mode  of  choice  are  definitely  prescribed.^ 

1  See  Story,  Commentaries,  §§  624-629,  Cooley's  cd. 

2  Art.  I.,  §  2;  Rev.  Stat.  U.  S.  §  23.  No  Federal  provision 
insists  that  members  of  the  House  shall  be  residents  of  their  several 
districts. 

8  Const.,  Art.  I.,  §  4. 

4  Rev.  Stat.  U.  S.  §  25. 

6  lb.,  §  27. 

8  On  the  second  Tuesday  after  the  meeting  .and  organization  of  the 
Legislature  which  next  precedes  the  expiration  of  a  senatorial  term, 
such  Legislature  shall  proceed  to  elect ;  and  at  least  one  ballot  shall 


THE  FEDERAL  LEGISLATURE.  107 

Vacancies  occurring  in  either  branch  are  specifically 
provided  for.^ 

No  longer  dependent  upon  their  several  States  for 
a  precarious  recompense,  members  of  Congress  were 
henceforth  to  be  paid  out  of  the  treasury  of  the 
United  States  at  a  rate  of  remuneration  to  be  ascer- 
tained by  law.2  As  under  the  old  articles,  and  in 
State  fundamental  law,  they  were  to  be  privileged 
from  arrest  while  in  attendance  on  the  Legislature 
or  while  going  and  returning,  except  for  treason, 
felon}^,  or  breach  of  the  peace ;  and  freedom  of  speech 
and  debate  was  still  assured  to  them.^  Office-holding 
under  the  United  States  was,  as  before,  pronounced 
incompatible  with  a  seat  in  Congress;  and  appoint- 
ment to  a  Federal  office  created  or  with  emoluments 
increased  during  such  service  in  Congress  was  further 
to  a  stated  extent  forbidden.* 

The  double-house  or  bicameral  feature  has  proved 
in  Congress  as  elsewhere  of  vast  advantage  to  public 
stability,  introducing  delay,  afterthought,  and  the 
opportunity  of  correction,  all  the  more  salutary  wher- 

be  taken  daily  diirini^  the  rest  of  the  session  until  some  one,  if  possible, 
is  chosen.    Rev.  Stat.  U.  S.  §§  14-17. 

1  Const.,  Art.  I.,  §§  2,  3. 

2  To.,  §  6.  Cf.  Articles,  V.,  sui[)ra,  page  88.  Congress  has  by- 
law changed  from  time  to  time  the  method  and  rate  of  compensa- 
tion,—  sometimes  fixing  a  -per  diem,  but  latterly  establishing  a  stated 
salary.  Mileage  has  also  been  allowed  so  as  to  better  equalize  the 
common  recompense,  since  travel  from  their  respective  homes  to  the 
capital  varies  with  membershi]i  so  widely.  Increase  of  compensation 
should  be  prospective,  if  possible,  for  constituents  have  invariably  re- 
buked a  Congress  which  assumed  to  raise  its  own  pay.  At  the  outset 
of  Federal  government,  the  Senate  undertook  to  assert  a  superior 
dignity,  claiming  higher  pay  as  an  incident ;  but  the  House  resisted 
all  such  pretensions  and  compelled  an  equal  compensation  for  both 
branches. 

3  Const.,  Art.  I.,  §  6,  and  cf.  Articles,  V.,  supra. 

*  Ih.  As  to  State  example  on  such  points,  see  supra,  page  56. 
The  venal  and  insidious  influence  upon  Parliament  of  a  British  min- 
istry served  as  a  warning  to  Americans  in  those  early  times. 


108  CONSTITUTIONAL   STUDIES. 

ever  the  two  brandies  combine  public  influence  differ- 
ently ;  nor  can  venality  gain  its  ends  so  readily  under 
such  double  adjustment.  Public  bodies  always  tend 
strongly  to  tyramiize  and  accumulate  force;  and 
while  friction  ought  not  to  be  so  great  as  to  block 
business  or  dishearten  great  reforms,  deferred  legis- 
lation is  better  than  crude  and  unwise  enactment. 
Each  branch  of  our  American  Congress  has  a  rational 
and  not  adventitious  basis  of  its  own,  —  a  basis  which 
in  a  certain  sense  is  popular ;  and  were  it  not  for  two 
faults  in  our  present  Federal  system,  the  Senate,  de- 
spite its  exasperating  defiance  sometimes  of  national 
opinion,  would  prove  an  excellent  bulwark  for  con- 
servatism. These  faults  are :  (1)  the  too  great  facility 
for  creating  new  States  by  the  concurrence  in  Con- 
gress of  bare  majorities,  so  that  older  States,  im- 
mense in  numbers,  wealth,  and  intelligence,  become 
overborne  permanently  in  the  Senate  by  wild  and 
drifting  communities  at  the  remote  west  who  seize 
upon  political  power,  while  yet  the  elements  of  state- 
hood are  raw  and  unassimilated ;  (2)  the  election  of 
all  senators  by  a  legislature,  which  at  least  is  a 
method  of  choice  quite  out  of  date  with  a  progressive 
democracy,  and  has  favored  in  many  States  an  insid- 
ious and  underhand  manipulation.  ^  Designedly,  and 
under  favoring  conditions  in  full  effect  besides,  the 
Senate  of  the  United  States  —  far  less  even  now  in 
niunbers  than  the  French  Senate  or  English  House 
of  Lords,  though  more  readily,  perhaps,  commanding 
an   attendant  majority  —  is   a  deliberative   body  of 

I  While  our  Federal  constitution  continues  unchanged  in  this  re- 
spect, the  best  recourse  of  States  and  the  people  is  —  as  Illinois  has 
exemplified  on  two  memorable  occasions  — to  project  the  candidacy 
of  rivals  for  Senator  into  the  popular  canvass  which  precedes  the 
choice  of  legislators,  and  thus  pledge  the  latter  in  effect  as  Presidential 
electors  are  pledged. 


THE  FEDERAL  LEGISLATURE.  109 

great  dignity  and  stability,  and  might  command  at 
all  times  the  most  talented  and  virtuous  of  the  whole 
people,  if  only  the  State  would  summon  such  men; 
it  is  rightfully  the  forum  of  national  eloquence  and 
the  palladium  of  political  wisdom.  Our  House  of 
Representatives,  though  a  much  smaller  body  than 
the  British  House  of  Commons  and  the  French 
and  Italian  chambers  wliicli  correspond  to  it  abroad, 
proves  less  the  arena  of  debate  than  of  action,  and 
under  the  operation  of  rules  lapses  into  a  huge  intel- 
lectual machine  for  the  achievement  of  business ;  and 
feeling  so  quickly,  moreover,  and  so  constantly,  the 
passing  moods  of  popular  opinion,  its  members,  sub- 
missive each  under  compulsion  to  his  own  constituency, 
allow  their  own  independence  to  be  shackled,  or  else 
assert  it  at  the  sacrifice  of  a  precarious  public  agency. 
In  this  there  are  doubtless  advantages  to  the  people 
themselves.  But  the  courtesy,  quiet,  and  freedom 
of  the  Senate  has  been  contrasted  with  the  turbulence 
of  the  House  of  Representatives  ever  since  both 
bodies  occupied  with  open  doors  the  same  building. 
And  to  make  the  Senate  all  the  more  stable  by  com- 
parison, with  an  experienced  element  in  its  member- 
ship inseparable  from  deliberation,  the  classified 
system  of  rotation  already  in  vogue  in  certain  States  ^ 
was  here  applied,  so  that  one-third  of  this  Federal 
chamber,  and  no  more,  should  vacate  their  seats  for 
successors  every  second  year,  or  as  each  new  House 
of  Representatives  came  into  power.^  On  the  other 
hand,  the  right  of  popular  district  constituencies  in 
the  States  to  choose  biennially  to  the  House  has  kept 
the  whole  people  alert  in  public  vigilance,  and  capa- 
ble of  holding  one  branch,  at  least,  of  the  Federal 
Legislature  directly  amenable  to  their  will. 

Congress,    as   thus    constituted,    was   directed   to 

1  Supra,  page  54.  2  Const.,  Art.  I.,  §  3. 


110  CONSTITUTIONAL   STUDIES. 

assemble  at  least  once  in  every  year;  namely,  on  the 
first  Monday  in  December,  unless  they  should  appoint 
by  law  a  different  day.^  The  House  of  Representa- 
tives were  to  choose  their  own  Speaker  and  other 
officers;  but  over  the  Senate  the  Vice-President  of 
the  United  States  was  designated  to  preside  ex  officio., 
while  the  Senate  chose  their  other  officers,  including 
a  President  pro  tempore  for  all  contingencies  of  a 
vacancy.  The  fundamental  distinction  has  wrought 
out  great  divergence  in  the  practice  of  the  two 
houses;  for  the  Speaker  of  the  House,  invested  by 
consent  with  the  patronage  of  all  committee  appoint- 
ments in  that  popular  branch,  has  become  a  national 
personage  of  vast  consequence,  over  whose  choice  a 
closely  divided  house  has  fought  many  a  hard  battle 
at  its  first  gathering;  but  in  the  permanent  Senate, 
organization  is  almost  automatic,  the  subordinate 
places  are  quietly  filled  and  committees  arranged  or 
rearranged  as  may  seem  fit  to  any  existing  majority 
of  the  members,  who  thus  control  their  own  patron- 
age, while  the  Vice-President  of  the  United  States 
occupies  the  chair,  unable  to  vote  except  in  an  equal 
division;  and  the  equilibrium  of  States,  each  repre- 
sented by  two  members,  continues  for  most  of  the 
time  unimpaired,''^ 

Methods  of  procedure  are  defined  in  the  consti- 
tution by  various  rules,  some  of  which  State  in- 
struments had  prescribed  already;  both  State  and 
Congressional  usage  in  America  being  largely  derived, 
however,  from  the  Parliamentary  common  law  of  our 
colonial  era,  here  set  forth  in  considerable  detail. 
Each  house  was  to  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members ;  and  a  majority 
of  each  should  constitute  a  quorum  to  do  business, 
while  a  smaller  number  might  compel  under  penalties 
1  Const.,  Art.  I.,  §  4.  2  ^rj.  j.^  §§  2,  3. 


THE  FEDERAL  LEGISLATURE.         Ill 

the  attendance  of  absent  members.^  Each  honse  was 
to  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and  with  a  two- 
thirds  concurrence  resort,  if  so  disposed,  to  expul- 
sion.2  Each  house  was  to  keep  its  appropriate  journal, 
and  publish  the  record  from  time  to  time,  entering 
the  yeas  and  nays  of  members  on  any  question,  at 
the  desire  of  one-fifth  of  those  present.  Neither 
house  could  adjourn  during  the  session  for  more  than 
three  days  without  the  consent  of  the  other,  nor  to 
any  other  place. ^  All  bills  for  raising  revenue  were 
to  originate  in  the  House;  but  the  Senate  might 
propose  or  concur  with  amendments  as  on  other  bills.* 
The  method  of  passing  all  bills,  orders,  resolutions, 
or  votes  to  which  a  concurrence  of  the  two  houses 
was  needful  (except  on  a  question  of  adjournment) 
involved  submission  to  the  President  of  the  United 
States  for  his  approval :  if  approving,  he  signed,  and 


^  See  similar  State  provisions,  supra,  page  56.  A  majority  is  the 
usual  quorum  for  busiucss  in  a  deliberative  body ;  but,  regarding  the 
practical  difficulty  of  securing  regular  attendance,  a  less  number  is 
prescribed  as  sufficient  in  many  assemblages.  Thus,  in  the  English 
House  of  Lords  three  lords  constitute  a  quorum,  and  in  the  House  of 
Commons  (a  body  of  some  six  hundred  members)  forty-five  may  suffice 
for  the  despatch  of  business.  Story,  Constitution,  §  834.  That  less 
than  a  quorum  should  be  empowered  to  adjourn  or  to  compel  attend- 
ance is  a  salutary  rule.  Under  the  Articles  of  Confederation  the  want 
of  some  such  power  produced  great  mischief,  for  attendance  was  often 
very  dilatory,  at  the  same  time  that  more  than  a  majority  of  States 
was  requisite  for  all  important  transactions. 

We  have  no  external  tribunal  competent  for  deciding  contested 
elections,  such  as  England  now  provides. 

2  Censure  or  expulsion  is  the  usual  punishment.  Members  of  the 
House  hare  sometimes  resigned  when  censured,  and  then  returned  to 
their  seats  vindicated  by  a  re-election.  As  to  punishing  contempt 
shown  by  persons  who  are  not  members,  see  103  U.  S.  168. 

*  See  State  provisions,  supra,  page  56. 

*  lb.  The  English  rule  requires  all  revenue  bills  to  originate  in 
the  House  of  Commons.  May,  Const.  Hist.,  c.  7.  See  also  debates 
in  Congress  on  this  subject  in  1872.    And  see  pages  56,  57. 


112  CONSTITUTIONAL  STUDIES. 

thus  gave  the  measure  its  full  validity  and  effect; 
but  if  disapproving,  he  might  interpose  his  veto,  which 
could  only  be  overcome  by  a  two-thirds  recorded  vote 
in  each  branch  of  Congress.  Silent  retention  of 
such  bill  or  resolution  by  the  President  for  ten  days 
without  returning  it,  unless  Congress  by  adjourning 
had  prevented  its  return,  gave  to  such  measure  the 
same  effect  as  his  formal  approval.^  In  most  of 
these  particulars,  the  text  of  the  constitution  is 
plainly  enough  expressed,  and  wherever  doubt  may 
arise,  our  courts  incline  to  leave  the  Federal  Legis- 
lature to  its  own  chosen  procedure.^ 

In  addition  to  legislative  functions,  which  work 
out  a  distinct  routine,  while  based  fundamentally 
upon  common  English  usage.  Congress,  like  many  of 
our  State  legislatures,  and  after  much  the  same 
fasliion,^  is  vested  with  the  Parliamentary  powers  of 
a  high  court  of  impeachment,  to  whose  jurisdiction 
all  civil  officers  of  the  United  States,  not  excepting 
the  President  himself  nor  the  Vice-President,  are 
answerable.  The  House,  as  grand  accuser  and  prose- 
cutor for  the  people,  is  invested  with  sole  power  to 
impeach;  while  the  Senate  alone,  sitting  specially 
upon  oath  or  affirmation,  tries  the  case,  renders  judg- 
ment, and  upon  concurrence  of  not  less  than  two- 
thirds   of    the   members   present,    may   convict    the 

^  The  executive  veto  is  further  considered,  post.  As  to  State  and 
colonial  usage  iu  this  respect,  see  supra,  page  62. 

2  In  144  U.  S.  1,  the  Supreme  Court  refused  to  treat  a  Speaker's 
new  rule  of  counting  a  quorum  as  an  unconstitutional  one.  Acts  of 
Congress  enrolled,  officially  attested  by  the  Speaker  and  President  of 
the  Senate,  and  deposited  in  the  State  Department  with  the  President's 
signature,  are  unimpeachable  in  the  courts  for  alleged  verbal  errors. 
143  U.  S.  649.  Nor  does  our  judiciary  incline  to  question  the  discre- 
tion of  Congress  in  passing  laws  and  appropriations.  159  U.  S.  590; 
163  U.  S.  427. 

'  Supra,  page  67. 


THE  FEDERAL  LEGISLATURE.         113 

person  impeached,  and  award  the  sentence.  At  the 
trial  of  a  President  of  the  United  States,  the  Chief 
Justice,  and  not  the  Vice-President,  whose  interest 
in  the  succession  is  immediate,  sliall  preside.  Treason, 
bribery,  "or  other  high  crimes  and  misdemeanors," 
furnish  cause  of  impeachment  by  the  House;  and 
while  sentence  by  the  Senate  cannot  extend  beyond 
removal  from  otfice  and  his  further  disqualification 
to  hold  and  enjoy  any  office  of  honor,  trust,  or  j)rofit 
under  the  United  States,  the  convicted  party  is 
nevertheless  made  further  liable  to  prosecution  and 
punishment  in  the  courts  of  law  like  any  other 
criminal.  ^ 


1  Const.,  Art.  I.,  §§2,  3 ;  Art.  II.,  §  4.  These  impeachment  pro- 
visions apply  only  to  "civil  officers;"  for  military  and  naval  officera 
of  the  United  States  are  subject  to  summary  trial  and  sentence  by 
court-martial,  whether  in  time  of  war  or  peace.  158  U.  S.  109.  Mem- 
bers of  Congress  (to  accept  the  ruling  of  the  Senate  in  1799,  when 
Blount,  a  Senator,  was  impeached)  are  not  "civil  officers"  in  this 
constitutional  sen.se ;  and  thei-e  are  sound  political  reasons  why  a 
legislature  in  one  or  the  other  branch  should  be  confined  to  such 
punishment  of  its  own  members,  including  expulsion,  as  the  funda- 
mental law  elsewhere  prescribes.  While  some  States  before  1789  (as 
seen  supra,  page  C7)  were  clear  in  declaring  that  an  officer  might  be 
impeached  while  out  of  office,  the  text  of  the  Federal  constitution  is 
not  explicit,  and  an  instance  occurred  under  President  Grant  where, 
after  a  Cabinet  officer's  resignation  had  been  hastily  accepted  by  the 
Executive,  the  House  desisted  from  impeachment  upon  some  such 
scruple ;  and  yet,  with  the  sentence  of  pro.'spective  disqualification 
recognized  in  the  text  of  the  constitution,  a  plenary  power  might 
perhaps  have  been  inferred.  "High  crimes  and  misdemeanors"  is 
rather  a  vague  offence  in  common-law  interpretation,  nor  perliaps 
would  Congress  consider  its  own  impeachable  discretion  limited  by 
any  common-law  barrier. 

Impeachment  by  the  Legislature  has  not  been  found  a  satisfactory 
mode  of  prosecution  and  punishment  in  our  American  practice.  It 
is  a  cumbersome  process,  after  all,  and  political  bias  is  very  apt  to 
influence  the  result.  The  adverse  course  of  State  constitutions  in 
this  respect  will  be  traced  hereafter  (Part  III.,  post);  and  as  to  our 
still  unaltered  Federal  mode,  it  has  been  found,  upon  a  century's  test, 
best  adapted  to  judicial  incumbents  whose  misconduct  provokes  no 
clear  issue  of  political  partisanship.     A  few  such  persons  have  been 

8 


114  CONSTITUTIONAL  STUDIES. 

quietly  convicted  and  removed  from  ofEce ;  but  in  the  case  of  a  Su- 
preme Court  judge,  obuoxious  to  the  party  majority  for  his  politics, 
impeachment  was  once  deemed  too  drastic  a  remedy  to  prevail  by  a 
two-thirds  vote ;  and  so,  again,  with  that  of  a  President  of  the  United 
States. 


VI. 


FEDERAL  CONSTITUTION   ANALYZED;  FUNDA- 
MENTAL POWERS  OF  CONGRESS. 

The  great  fundamental  powers  of  the  new  Union 
are  seen  detailed  for  the  most  part  in  the  latter  part 
of  Article  I.  and  more  especially  in  its  eighth  section. 
True  philosophical  description  would  perhaps  have 
stated  those  powers  as  belonging  to  the  government 
of  the  United  States,  instead  of  to  Congress,  as  the 
text  puts  it.  But  Congress  had  hitherto  and  for 
nearly  fifteen  years  personified  in  fact  the  whole 
dignity  and  authority  of  the  Union,  and  this,  more- 
over, was  the  epoch  when  a  representative  legislature 
still  stood  among  American  States  as  the  peculiar 
aegis  of  a  Republican  people.  The  drafting  of  chief 
Federal  powers,  as  so  much  to  be  detracted  henceforth 
from  State  sovereignty,  was  the  noblest  accomplish- 
ment of  the  whole  constitution,  as  it  proved  for  appli- 
cation the  most  delicate  and  difficult.  The  discussion 
to  which  each  important  phrase  has  given  rise,  in 
courts  and  the  forum  of  political  debate,  the  defini- 
tions and  re-definitions  as  between  State  and  Federal 
authority  which  have  become  needful,  are  familiar  to 
Americans.  And  here  the  brief  text  of  enumeration 
has  been  inundated  by  copious  commentary  and  expo- 
sition. Contests  over  the  constitutional  construction 
of  these  powers  in  and  out  of  court  have  at  times 
bred  political  parties  and  agitated  the  whole  country ; 
giants  in  intellect  and  eloquence  have  been  the  oppos- 


116  CONSTITUTIOIs^AL   STUDIES. 

ing  champions,  and  sovereignty,  State  and  Federal, 
have  fought  for  the  mastery. 

As  to  fundamental  powers,  in  this  complex  political 
establishment  of  ours,  some  propositions  developed 
from  the  long  discussion  may  be  stated  as  well  estab- 
lished. Powers  are  sometimes  (1)  exclusive  in  the 
United  States;  sometimes  (2)  concurrent  in  the 
United  States  and  the  several  States;  and  sometimes 
(3)  exclusive  in  the  States,  those  several  depositories 
of  all  residuary  public  influence.  Exclusive  powers 
in  the  State  need  no  enumeration,  for  they  comprise 
all  undelegated  functions  of  government,  such,  for 
instance,  as  divorce  and  the  probate  of  wills.  Of 
exclusive  powers  in  the  United  States,  import  duties 
and  the  regulation  of  foreign  commerce  serve  for 
example ;  while  among  plainly  concurrent  powers  are 
those  of  general  taxation  and  borrowing  money. 
But  in  connection  with  enumerated  powers  in  our 
Federal  constitution,  and  for  their  better  confine- 
ment, we  find  enumerated  prohibitions  which  are 
positively  expressed;  and  these  prohibitions  may  be 
(1)  to  the  United  States  alone,  ^  though  rarely  amount- 
ing to  more  than  the  qualification  of  some  power 
expressly  given;  (2)  to  the  States ;2  (3)  to  both  State 
and  United  States  governments.^  Of  powers  which 
are  expressly  vested  in  the  United  States,  and  yet 
not  in  terms  exclusively  so,  some  are  permissivel}^ 
exerted  by  the  several  States  until  Congress  legislates 
and  Federal  supremacy  prevails  for  the  time  being.* 

1  E.q.  As  to  slave-trade  suppression  before  1808,  taxation  on 
exports,  etc.     Const.,  Art.  I.,  §  9. 

2  Art.  I.,  §  10. 

3  Such  as  bills  of  attainder,  ex  post  facto  latrs,  and  the  pjrant  of  titles 
of  nobUity.     Art.  L,  §§  9,  10. 

*  As  in  bankrupt  and  insolvent  systems,  which  St.atcs  have  regu- 
lated thus  far  in  our  history  more  constantly  than  the  United  States. 
"  It  is  not  the  mere  existence  of  national  power  but  its  exercise  which 


FEDERAL  POWERS  DEFINED.  117 

Of  express  prohibitions  to  the  States  some  are 
uuqualilied  iii  language,  while  some  are  simply  pro- 
nounced subject  to  the  consent  of  Congress.^  Sundry 
powers  and  prohibitions  in  this  constitution  have 
direct  relation  not  to  Congress,  but  rather  to  some 
other  department  of  Federal  government.  ^  As  be- 
tween States  severally  and  the  United  States,  each 
government,  unless  collision  occurs,  is  entitled  to 
complete  independence  and  sovereign  exercise  within 
its  own  legitimate  sphere  of  action ;  but  where  such 
mutual  exercise  provokes  collision,  it  is  the  Union 
that  should  prevail  as  supreme.^  For  the  present 
exercise  of  Federal  powers  a  generous  interpretation 
of  the  constitution  with  its  amendments  may  fairly 
be  claimed,  to  the  extent  of  rendering  the  Union 
adequate  for  great  emergencies,  and  equal  at  all 
times  to  the  efficient  conduct  and  preservation  of  its 
momentous  trust  on  behalf  of  the  whole  people ;  and 
yet,  on  the  other  hand,  the  Federal  government 
should  not  by  misconstruction  of  the  language  used 
in  the  great  charter  whence  national  authority  is 
derived,  nor  by  unwarranted  enlargement  of  its 
manifest  expression,  destroy  or  even  encroach  upon 
the  States  and  their  rightful  autonomy ;  since  to  each 
State  still  belong  the  intimate  concerns  of  all  local 
inhabitants,  save  as  voluntarily  surrendered  by  fun- 
damental consent  given  under  constitutional  forms. 

Under  the  Articles  of  Confederation  we  see  Con- 
gress (then  the  sole  embodiment  of  Federal  authority) 
vested  at  once  and  expressly  with  "  sole  and  exclu- 
sive "  rights  and  powers  for  various  purposes,  and 
express  prohibitions  correspondingly  laid   upon   the 

is  incompatible  with  the  exercise  of  the  same  power  bj  States.' 
Cooley's  Elements,  34. 

1  Cf.  different  clauses  in  Art.  I.,  §  10. 

2  See  President's  power  of  making  treaties,  etc.,  Art.  II.,  §  2. 

3  See  139  U.  S.  240;  158  U.  S.  98. 


118  CONSTITUTIONAL  STUDIES. 

States.^  And  in  the  more  perfect  Union,  as  was 
done  under  the  imperfect  one,  Federal  government 
should,  avoiding  "the  falsehood  of  extremes,"  steer 
safely  between  disintegration  on  the  one  hand  and 
centralization  on  the  other.  To  this  intent,  and  not 
for  donating  by  a  sweep  powers  not  elsewliere  enu- 
merated, does  our  constitution  of  1787  aid  all  specific 
authority  by  the  fit  supplementary  clause  that  Con- 
gress may  make  all  laws  which  shall  be  "  necessary 
and  proper"  for  carrying  into  execution  all  the 
powers  vested  by  that  instrument  in  the  government 
of  the  United  States  or  in  any  department  or  officer 
thereof.^ 

I.  The  first  power  specifically  given  to  Congress 
is  that  of  taxation,  as  operating  upon  the  whole 
Union  and  its  inhabitants,  and  not,  as  before,  upon 
sovereign  States  merely,  —  that  power  which,  if  even 
stingily  bestowed  before  1787  by  the  thirteen  States 
themselves,  would  probably  have  postponed  indefi- 
nitely the  convention  and  its  new  plan  of  Union. ^ 
The  power  here  conferred  is  "to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,  to  [i.  e.,  in  order 
to]  pay  the  debts  and  provide  for  the  common  de- 
fense and  general  welfare  of  the  United  States."* 
We  thus  observe  (1)  that  the  discretionary  choice  in 
Congress  is  large  as  between  the  various  kinds  of 
taxes;  at  the  same  time  that  an  indirect  duty  laid 
upon  foreign  imports  has  constantly  proved  the  most 
popular  and  indispensable  source  of  national  revenue, 
to   which   excises   (the   internal   indirect   tax),   and 

^  See   Art.   VI.     Where   constitutionally  an  net  of   Congress   is 
passed  or  a  treaty  effected,  this  becomes  the  supreme  law  of  the  land. 
2  Art.  I.,  §  8,  final  clause. 
'  Supra,  page  !U. 
*  Art.  I.,  §  8,  first  clause. 


FEDERAL  POWER    TO    TAX.  119 

direct  taxation  are  but  secondary.  ^  And  (2)  that  all 
Federal  taxation  has  its  proper  enumerated  objects, 
and  Congress  has  no  unqualified  right  to  impose  it. 
Taxation  by  Congress,  for  some  avowedly  private  or 
extra-constitutional  purpose,  would  be  void.^  All 
duties,  imposts,  and  excises  must  be  uniform,  or  so 
that  the  same  articles  shall  bear  the  same  rate  of 
taxation  throughout  the  United  States,  thereby  pre- 
venting any  Congressional  preference  of  one  State 
over  another. 2  Furthermore,  for  lessening  the  sac- 
rifice required  of  our  original  States  in  permitting 
this  Federal  network  to  be  spread  over  them  and 
surrendering  so  many  sources  of  their  own  revenue, 
the  constitution  provides  that  direct  taxes  shall  be 
apportioned  among  the  States  according  to  the 
popular  basis  of  numbers  adopted  for  the  choice  of 
Representatives.^     Finally,  no  tax  or  duty  can  be  laid 

^  An  income  tax  may  bo  laid  on  the  principle  of  a  direct  tax  ;  and 
so  may  a  tax  npon  lands  or  polls.  See  158  U.  S.  601.  Under  the 
immense  war  pressure  of  1813  and  1862-1865,  the  greatest  variety  of 
taxes  were  imposed  by  Congress. 

2  To  "  pay  the  debts "  of  the  United  States  constitutionally  con- 
tracted must  always  be  a  chief  object  of  Federal  taxation.  As  to 
giving  "  the  common  defense  and  general  welfare "  a  plenary  and 
indefinite  interpretation  there  was  great  controver.sv  in  former  times, 
but  opinion  seems  to  have  settled  upon  a  moderate  and  confined  inter- 
pretation of  that  claui-'e.  See  Story,  c.  14,  and  Cooley's  notes  at  length. 
Those  phrases  arc  seen  to  have  been  used  (in  doubtless  a  limited  sense) 
in  Articles  of  Confederation  as  well  as  the  present  instrument.  Supra, 
page  90. 

3  Art.  T.,  §  8,  first  clause;  lO'i  U.  S.  12.3.  Diversity  of  taxation, 
either  as  to  tlie  amount  or  species  of  property,  is  perfectly  consistent 
with  uiiifonnity  and  equality.     142  U.  S.  339. 

*  Art.  I.,  §  2,  third  clause ;  an  adapt.ation  from  the  older  method 
of  making  requisitions.  The  meaning  of  "direct  taxes"  is  now  con- 
sistently explained  by  the  courts  as  including  any  income  tax  levied 
upon  individuals,  as  well  as  taxes  on  polls  or  real  estate.  See  1.58 
U.  S.  601,  explaining  3  Dall.  171  ("carriage  tax")  and  other  former 
cases.  This  "apportionment"  method  of  taxation  has  never  been  of 
much  practical  avail,  though  the  offspring  of  a  very  important  com- 
promise in  the  convention  of  1787. 


120  CONSTITUTIONAL  STUDIES. 

upon  articles  exported  from  any  State,  ^  so  that  our 
customs  revenue  system  is,  after  all,  one-handed  for 
effectiveness.  The  power  to  tax  involves  when 
unconstrained  the  power  to  destroy;  and  Federal 
taxation  where  rightfully  applied  is  sovereign  and 
paramount.  2 

II.  The  power  to  borrow  money  on  the  credit  of 
the  United  States^  is  an  obvious  and  indispensable 
function  of  sovereignty,  which,  as  concerns  our 
Union,  the  Articles  of  Confederation  had  already 
recognized.*  This  Federal  power  to  borrow  cannot 
be  controlled  by  the  States;  no  State  taxation  of 
national  securities  is  permissible;  but  States  may 
still  borrow  at  discretion  for  their  own  purposes. 
The  borrowing  capacity  of  the  Union  should  properly 
be  conlined  to  the  same  just  limitations  of  constitu- 
tional purpose  as  the  taxing  power.  Large  public 
borrowing  comes  usually  in  special  emergencies, 
while  for  ordinary  needs  money  is  often  borrowed  by 
way  of  anticipating  for  convenience  the  regular 
revenue.  All  debts  contracted  by  Congress  on  behalf 
of  the  Revolutionary  Confederacy  were  made  obliga- 
tory upon  the  United  States  by  the  original  Articles, 
with  a  solemn  pledge  of  the  public  faith ;  and  similarly 

1  Art.  I.,  §  9,  fiftli  clause.  See  92  U.  S.  372.  This  constraint  was 
procured  by  jealous  staple-raising  States  for  their  own  immunity. 

2  Thus  State  bank  circulation  was  wiped  out  by  Federal  taxation, 
so  as  to  be  replaced  by  that  of  national  banks.  8  Wall.  533.  But 
States  cannot  tax  conversely.     4  Wheat.  316. 

3  Articles,  IX.,  clauses  5  and  6,  which  also  expressly  granted  the 
right  to  "emit  bills  of  credit,"  —  a  power  here  omitted,  but  unfortu- 
nately not  positively  forbidden  to  the  Union.  Const.,  Art.  IV.,  §  8, 
second  clause. 

*  Public  debts  seem  sometimes  inseparable  from  modern  govern- 
ment. The  constant  settled  aim  of  this  Union  has  been  to  get  free 
from  debt;  but  once  only,  and  for  a  brief  time  about  1835,  was  that 
ha])py  goal  reached.  Government  may  borrow  money  either  by  issu- 
ing long  bonds  or  by  temporary  loans. 


REGULATION  OF   COMMERCE.  121 

all  debts  of  the  United  States  under  the  old  Confed- 
eration Avcre  declared  ecpuilly  liinding  under  the 
constitution.^ 

III.  The  power  to  regulate  commerce  was  a  national 
innovation,  and  one  of  the  grandest  gains  for  consoli- 
dating national  influence  which  the  Federal  constitu- 
tion proposed.  If  the  petty  commercial  warfare  of 
thirteen  jurisdictions  proved  intolerable  in  1787, 
what  would  now  be  that  of  forty  or  more?  The 
want  of  some  supreme  power  over  navigation  con- 
joined with  that  of  levying  uniform  customs  had  most 
hindered  the  United  States  from  taking  rank  in 
Europe  as  a  nation  competent  to  make  a  commercial 
treaty,  and  degraded  the  Confederacy  fatally  in  the 
estimation  of  its  own  people.  This  new  power  was 
conceded  therefore  in  the  convention  of  1787  without 
opposition  or  even  a  division. ^  But  the  meaning  and 
true  extent  of  this  power  has  occasioned  constant  con- 
troversy and  litigation  ever  since  our  constitution  was 
adopted,  and  in  no  respect  is  the  arbitrament  of  the 
Supreme  Court  more  delicate.  By  "commerce,"  as 
it  is  ruled,  the  constitution  means  not  traffic  alone, 
but  navigation  in  its  amplest  sense;  hence  Congress 
has  passed  laws  from  the  beginning,  such  as  favor 
American  enrolled  and  licensed  vessels,  command 
respect  for  our  national  flag  on  the  high  seas,  and 
employ  freely  the  weapons  of  reciprocity  and  favor, 
on  the  one  hand,  and  on  the  other,  embargo,  non- 
intercourse,  and  retaliation,  in  aid  of  America's 
commercial  relations  with  the  world.  The  rights  of 
American  seamen,  moreover,  are  thus  regulated, 
lighthouses  and  buoys  are  erected,  the  coast  sur- 
veyed, and  (not  exclusive  altogether  of  State  policy) 

1  Cf.  Articles,  XII. ;  Const.,  Art.  VI. 
3  Art.  I.,  §  8,  third  clause. 


122  CONSTITUTIONAL   STUDIES. 

quarantine,  pilotage  and  wrecks  provided  for.  Under 
an  exercise  of  the  same  power  by  Congress  the  im- 
portation of  an  undesired  foreign  population  may  be 
hindered  or  suppressed.  ^ 

All  such  matters  relate  especially  to  American 
commerco  with  foreign  nations,  the  first  branch 
specified  in  the  grant  of  power.  The  second  branch 
comprises  commerce  "among  the  several  States," 
whether  by  land  or  water.  This  second  specification 
blends  often  with  the  first,  applying  the  same  general 
doctrine.  It  has  led  to  the  important  "interstate 
commerce  act"  of  1887,  wdiich  regulates  all  transpor- 
tation over  the  surface  of  the  United  States  by  rail- 
way and  other  carriers  which  is  not  limited  strictly 
to  a  State's  own  confines. ^  The  third  specification 
embraces  commerce  with  Indian  tribes;  and  here  a 
regulating  power  in  Congress  harmonizes  with  the 
uniform  policy  of  the  Union,  which  places  such  of 
the  red  aborigines  as  have  not  become  civilized  citi- 
zens under  the  full  and  immediate  control  and  disci- 
pline of  the  general  government,  whether  as  subjects 
fit  for  treaty  relations  or  as  mere  wards.  ^ 

Much  of  this  Federal  exercise  of  power  comes,  of 
course,  into  conflict  with  State  authority;  and  as  the 
language  of  our  constitution  appears  ambiguous  on 
the  point  of  Federal  exclusiveness,  the  supreme 
tribunal  of  the  Union  has  been  forced  to  define  and 
apply  the  rule  of  constitutional  intent  in  many  perplex- 


1  See  among  other  Supreme  Court  decisions  relating  to  foreign 
commerce,  13  IIow.  515;  9  Wheat.  1  ;  7  How.  238;  91  U.  S.  275. 

2  This  important  enactment  by  Congress,  including  the  establish- 
ment of  a  Federal  commission,  followed  the  decision  of  the  Supreme 
Court  in  118  U.  S.  557. 

2  Cf.  under  our  Confederacy  the  confused  though  not  dissimilar 
expression  of  Articles,  IX.,  fourth  clause.  See  al.so  Const.,  Art.  I., 
§  2,  third  clause,  excluding  from  representation  all  "  Indians  not 
taxed." 


REGULATION  OF   COMMERCE.  123 

ing  instances  of  State  and  national  collision.  Wher- 
ever genuine  conflict  thus  arises,  it  is  the  State  that 
must  yield  to  the  supreme  and  sufficient  potency  of 
the  Union.  ^  Congress,  of  course,  cannot  interfere 
with  the  commerce  which  is  confined  to  one  State 
exclusively ;  the  ordinary  trade  and  traffic  of  a  State 
pursued  among  its  own  inhabitants,  local  buying, 
selling  and  exchange,  local  contract  transactions,  for 
the  regulation  of  local  travel  and  communication, 
are  all  at  the  discretion  of  the  individual  State.  In 
short,  the  commerce  of  a  State  which  Congress  may 
control  must  be  in  some  sense  and  at  some  essen- 
tial stage  of  its  progress  extra-territorial.  As  to  all 
extra-territorial,  interstate,  or  foreign  trade  and  com- 
merce, however,  a  State  has  no  right  to  legislate  at 
all  so  as  practically  to  interfere  with  the  United 
States;  and  wherever  the  national  sovereignty,  dig- 
nity, and  efficiency  would  be  necessarily  impaired  in 
consequence,  no  matter  whether  the  State  so  intended 
it  or  not,  such  local  legislation  is  an  encroachment 
upon  the  powers  of  the  Union.  ^  Thus,  the  regula- 
tion of  commerce  on  a  stream  whose  navigable  waters 
are  exclusively  within  the  limits  of  a  State  belongs 
properly  to  that  State ;  but  where  a  river,  by  itself  or 
by  uniting  with  a  lake  or  other  connecting  waters, 
forms  a  continuous  highway  over  which  commerce 
may  be  directly  carried  on  with  other  States  or  with 
foreign  countries,  such  commerce  becomes  properly 
subjected  to  the  regulation  of  Congress.^ 

The  same  distinction  holds  good  of  analogous  land 
traffic  by  railway  or  canal.     Where  the  State  of  New 

1  139U.  S.  240;  158  U.  S.  98. 

2  138  U.  S.  78. 

8  14  How.  568;  10  Wall.  557.  The  test  of  "navigable  waters"  in 
the  United  States  is  not,  as  in  England,  the  ebb  and  flow  of  the  tide, 
but  their  navigable  capacity.     10  Wall.  557. 


124  CONSTITUTIONAL  STCTDIES. 

York  granted  to  Robert  Fulton  and  his  associates, 
by  way  of  bounty  for  the  valuable  invention  of  the 
steamboat,  an  exclusive  right  to  navigate  by  steam 
the  waters  of  that  State  for  a  series  of  years,  the  act 
was  held  void  as  concerned  all  higliways  of  foreign 
and  interstate  commerce.^  A  State  may  not  safely 
authorize  the  construction  of  a  bridge  across  a  navi- 
gable harbor  or  river  so  as  to  impede  foreign  and 
interstate  commerce,  without  some  sort  of  Congres- 
sional sanction ;  ^  and  the  power  of  the  Federal  gov- 
ernment to  improve  navigable  waters  is  exclusive  of 
States,  as  well  as  paramount,  whenever  called  into 
exercise.^  A  State  cannot  impose  tolls,  nor  fix  a 
tariff  for  railways,  so  far  as  concerns  the  traffic  which 
passes  into  the  State  from  outside  or  through  the 
State  into  some  other  State  or  country.*  In  general 
it  may  be  said  that  no  State  has  the  right  to  lay  a  tax 
or  imposition  on  interstate  or  foreign  commerce  in 
any  form,  whether  by  way  of  duties  levied  on  the 
transportation  of  the  subjects  of  that  commerce,  or 
on  the  receipts  derived  from  that  transportation,  or 
on  the  occupation  or  business  of  canning  it  on,  for 
the  reason  that  such  taxation  is  a  burden  on  that 
commerce,  and  amounts  to  a  meddlesome  regulation  of 
it.^    Indeed,  in  all  matters  of  consequence  within  the 

1  9  Wheat.  1. 

2  13  How.  518;  18  How.  421;  123  U.  S.  288;  125  U.  S.  1;  154 
U.  S.  204. 

3  Congress  may  create  a  corporation  for  erecting  such  a  bridge. 
153  U.  S.  525. 

*  118U.  S.  557. 

5  See  Fuller,  C.  J.,  in  135  U.  S.  161 ;  136  U.  S.  104 ;  147  U.  S.  396. 
Thus,  a  State  cannot  levy  a  special  license  tax  upon  peddlers,  "  drum- 
mers," etc.,  from  other  States.  153  U.  S.  289.  But  to  require  all 
peddlers,  etc.,  to  take  a  license,  not  discriiniuating  as  to  those  from 
other  States,  is  not  unconstitutional.  156  U.  S.  296.  And  .see  141 
U.  S.  47.  Nor  is  a  State  debarred  from  taxing  .all  traffic  from  one  point 
to  another  point  within  the  State.     145  U.  S.  192.    And  see  155  U.  S. 


REGULATION   OF   COMMERCE.  125 

present  Federal  power  of  Congress,  its  own  inaction 
does  not  excuse  States  from  transgressing  in  order  to 
impose  regulations  of  their  own ;  for  the  only  effect 
of  such  inaction  nnist  be  to  leave  such  extra-territorial 
commerce  free  and  untrammelled,  and  subject  to  the 
unregulated  operation  of  domestic  law.^ 

On  the  other  hand,  in  applying  the  extremely 
delicate  limitations  of  this  regulating  power,  States 
are  readily  permitted  by  our  Federal  judiciary  to 
impose  any  tax  which  is  in  effect  a  burden  upon  local 
internal  commerce  alone,  or  even  a  tax  upon  com- 
merce coming  in  from  outside,  so  long  as  it  is  a 
burden  equally  shared  by  local  commerce,  and  in  no 
sense  a  discrimination  uj)on  external  commerce. ^ 
And  so,  too,  the  regulation  of  each  State's  internal 
police  is  left  to  the  State  with  equal  exclusiveness 
so  far  as  the  rule  operates  only  internally,  even 
though  foreign  and  interstate  commerce  may  be 
indirectly  affected  by  it.^  Many  State  enactments 
which  justly  amount  to  no  more  than  equal  and  just 
police  and  inspection  regulations,  stand  thus  the  test 
of  the  constitution;^  and,  in  fact,  that  instrument 
expressly  recognizes  the  right  of  any  State  to  levy 
such  impost  or  duty  on  imports  or  exports  for  the 

688.  It  is  the  State  discrimination  against  what  goes  to  or  arrives 
from  without  its  confines,  that  the  court  here  condemns  as  repugnant. 
A  State  may  levy  a  tax  on  its  own  proportion  of  railroads,  telegraplis, 
etc.,  which  operate  in  other  States.     141  U.  S.  18,  40. 

1  91  U.  S.  275;  120  U.  S.  489. 

2  141  U.  S.  18,  40  ;  163  U.  S.  1 ;  15.5  U.  S.  688.  But  taxation  upon 
external  traffic  alone  is  void.  Supra,  page  124, 141  U.  S.  47.  There  are 
some  very  nice  distinctions  in  the  later  decisions.     See  142  U.  S.  217. 

8  A  State  may  require  returns  to  be  filed.  153  U.  S.  446.  And  see 
154  U.  S.  362;  162  U.  S.  565. 

*  9  Wall.  41 ;  93  U.  S.  99 ;  136  U.  S.  313 ;  163  U.  S.  299 ;  16  Wall. 
36.  But  nominal  inspection  acts  (as,  e.  r/.,  for  slaughtered  meats)  which 
apply  only  to  such  articles  as  come  from  without  are  void  as  a  discrimi- 
nation against  external  commerce.  138  U.  S.  78.  An  oleomargarine 
State  statute  is  an  inspection  regulation.     155  U.  S.  461. 


126  CONSTITUTIONAL  STUDIES. 

execution  of  its  own  inspection  laAvs  as  may  be  abso- 
lutely necessary.  1  Competent  State  regulations  have 
been  made  concerning  liquor  traffic,  so  as  to  embrace 
imported  merchandise  whose  bulk  has  been  broken, 
but  not  whole  packages  as  they  arrive. ^  There  are 
valid  State  laws  of  long  standing,  applicable  to  pilot- 
age and  quarantine  in  local  harbors,  which  Congress 
has  not,  as  probably  it  might,  seen  fit  to  supersede; 
valid  State  regulations  of  local  fisheries  also  and  the 
plying  of  a  local  carrier  trade. ^  In  general  every 
State  establishes,  controls,  regulates,  and  improves 
its  own  highways,  whether  of  land  or  water  traffic; 
besides  allowing  ferries  to  be  established,  railroads 
constructed,  and  bridges  built  after  a  considerable 
discretion ;  and  yet,  where  the  interests  to  be  imme- 
diately affected  are  not  local,  but  may  prove  directly 
injurious  to  other  States  or  to  a  foreign  country  as  a 
continuous  highway  beyond  the  State,  the  assent  of 
Congress  is  always  desirable  if  not  indispensable, 
since  otherwise  the  United  States  might  interpose 
its  superior  regulation  and  control.* 

An  important  restriction  upon  the  power  of  Con- 
gress to  regulate  foreign  and  interstate  commerce, 
as  well  as  upon  the  power  to  tax,  is  found  in  the 
express  provision  that  "  no  preference  shall  be  given 
by  any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  State  over  those  of  another;  nor  shall 

1  Art.  I.,  §  10,  second  clause.  This  clause  has  reference  to  foreign 
commerce  only.     114  U.  S.  622 ;  8  Wall.  123. 

2  5  Wall.  4G2. 

8  12  How.  209;  2  Wall.  450;  118  U.  S.  4.55.  But  such  statutes 
must  not  discrimiuate  against  other  States.  118  U.  S.  90.  As  to  State 
fisheries,  see  152  U.  S.  133. 

*  Supra,  page  122  ;  102  IJ.  S.  691 ;  124  U.  S.  465  ;  154  U.  S.  204.  The 
line  of  Supreme  Court  decisions  on  this  whole  important  subject,  not 
always  distinctly  traceable  by  a  layman,  need  not  be  liere  defined  more 
closely.  The  professional  reader  may  consult  at  greater  length,  Story, 
Comm.,  ch.  15,  with  latest  notes  by  Cooley  and  others. 


NATURALIZATION  AND  BANKRUPTCY.     127 

vessels  bound  to  or  from  one  State  be  obliged  to 
enter,  clear,  or  pay  duties  in  another."  ^  The  jealous 
heed  in  1787  that  no  State  should  derive  substantial 
advantage  over  another  nor  receive  special  favor 
under  tlie  reformed  Federal  government  explains  this 
clause  sufficiently. 

IV.  National  uniformity  (1)  in  naturalization,  and 
(2)  on  the  subject  of  bankruptcies,  is  the  object  pro- 
posed by  the  next  power  detailed  in  the  present  sec- 
tion; and  the  corresponding  discretion  vested  in 
Congress  is  ample. ^  But  only  in  the  former  respect 
has  that  discretion  been  amply  exerted;  and  in  the 
convention  which  framed  our  instrument  the  latter 
grant  of  power  appears  to  have  been  an  after-thought. 
Under  the  earlier  Confederacy,  States  retained  sole 
power  to  naturalize,  and  complications  resulted  which 
obviously  needed  reform.^  Seizing  at  once  and  occu- 
pying this  ncAV  province  of  Federal  authority.  Con- 
gress has  practically  excluded  the  States  from  its 
exercise,  ever  since  the  constitution  went  into  effect ; 
while  at  the  same  time  the  law  recognizes  as  still 
existing  on  the  part  of  our  people  a  certain  citizen- 
ship as  to  the  State  demanding  State  allegiance,  sub- 
ordinate, however,  to  citizenship  of  the  United  States 
and  national  allegiance,  which  continue  paramount 
and  supreme.*  The  naturalization  laws  of  Congress, 
with  their  peculiar  bearing  upon  the  admission  of 
foreigners  to  a  full  American  status,  have  varied 
somewhat  with  the  changing  policy  of  the  majority 
in  power ;  ^  but  a  moderate  term  of  residence  within 

1  Art.  I.,  §  9,  sixth  clause.     And  see  18  How.  421. 

2  Const.,  Art.  I.,  §  8,  fourth  clause. 

'  For  under  Articles,  IV.  free  inliabitants  of  the  Union  were  ac- 
corded many  interstate  rights.     Sec  supra,  page  91. 
*  See  16"Wall.  36. 
^  The  present  and  usual  term  of  residence  is  five  years ;  and  declara- 


128  CONSTITUTIONAL   STUDIES. 

the  United  States  and  of  probation  after  one's  decla- 
ration of  intent,  suffices  usuall}-  to  confer  all  privi- 
leges and  immunities  of  a  full  status  such  as  the 
Federal  constitution  at  this  day  doubly  warrants  and 
secures.^  A  citizen,  in  the  full  legal  acceptation  of 
that  term,  may  be  said  to  be  a  member  of  the  civil 
state  or  community  entitled  to  all  its  privileges ;  ^  and 
there  is  a  clear  legal  distinction  in  privilege  between 
citizens  and  resident  aliens.  In  many  American  States, 
to  be  sure,  some  of  those  distinctions  are  by  this  date 
largely  abolished,  in  favor,  more  especially,  of  such 
aliens  as  have  by  declaring  their  intention  become 
prospective  citizens  of  the  United  States.^  But  an 
alien  is  judicially  considered,  from  our  national  point 
of  view,  as  resident  in  the  United  States  by  sufferance 
only,  where  he  takes  no  steps  to  become  a  citizen. 
Congress  has  full  power  to  expel  or  exclude  all  such 
persons,  or  to  exclude  some  and  admit  others,  or  even 
to  punish  those  who  attempt  to  violate  its  enactments.* 

tion  of  intent  is  followod  in  two  years  by  a  full  admission.  U.  S.  Rev. 
Stats.,  §§  2165-2174.  In  1798  the  term  was  raised  to  fourteen  years, 
but  that  illiberal  extension  did  not  long  prevail. 

1  See  Const.,  Art.  IV.,  §  2.  "All  persons  boru  or  naturalized  in  the 
United  States  and  subject  to  the  juri.<diction  thereof  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside,"  and  no  State  can 
abridge  such  privileges  and  immunities.     Ih.,  14th  Amendment,  §  1. 

-  Cooley,  Elements,  79. 

^  Thus  the  common-law  disqualification  to  hold  real  estate  is  largely 
removed  by  State  provisions,  so  tliat  aliens  may  freely  hold,  convey, 
and  transmit  such  property.  And  see  Part  III.,  jtoxt.  American  native 
policy  in  such  resjiccts  has  always  been  consisteut  and  enlightened. 
One  of  the  charges  made  against  George  III.  in  the  Declaration  of 
Independence  was  that  of  endeavoring  "  to  prevent  tlie  population  of 
these  States  "  by  obstructing  the  laws  for  naturalization  of  foreigners. 

*  130  U.  S.  581  ;  142  U.  S.  051 ;  149  U.  S.  698;  150  U.  S.  476  (ap- 
plied in  the  case  of  imported  Chinese  laborers).  Nor  need  the  courts 
intervene  in  such  a  pob'cy ;  for  Congress  may  confide  enforcement  of 
its  will  to  the  Executive.  All  this  (which  has  licen  but  recently  de- 
cided) seems  to  justify,  as  to  constitutional  legality,  the  celebrated 
"alien  act"  of  John  Adams's  Presidency. 


COINAGE,    WEIGHTS,   AND  AIEASURES.     129 

The  treaty  power  of  the  United  States  enhirges 
Federal  control  of  this  whole  subject  in  its  diplomatic 
and  international  bearings.  ^ 

As  for  a  uniform  bankruptcy  system  throughout 
the  Union,  public  opinion  appears  historically  to 
have  thus  far  considered  the  aggrandizement  of  a 
Federal  judiciary  at  the  loss  of  State  local  tribunals, 
a  disadvantage  outweighing  its  promised  advantage 
for  any  permanent  establishment.  In  special  in- 
stances, however,  and  chiefly  for  the  temporary 
advantage  of  desperate  debtors  whose  creditors  were 
scattered  among  various  States,  have  bankruptcy 
laws  for  national  and  uniform  operation  been  enacted 
by  Congress ;  nor  have  such  experiments  given  clear 
satisfaction.'-^  While,  therefore,  this  constitutional 
power  in  the  Union  remains  unexercised,  States  and 
State  courts  continue  apart  their  own  insolvent 
systems,  and  give  local  preferences  to  creditors  as 
State  legislatures  may  determine. 

V.  Federal  power  is  next  given  to  coin  money, 
regulate  the  value  thereof,  and  of  foreign  coin,  and 
fix  the  standard  of  weights  and  measures.^  The 
latter  power  has  always  remained  dormant  in  the 
Union,  because  of  the  popular  indisposition  to  change 
old  customs  of  traffic ;  but  for  the  coinage  of  money 
the  admirable   French  decimal  standard   supplanted 


1  Uuder  the  former  Confederacy  the  United  States  was  forbidden 
to  make  treaties  of  commerce  restraining  the  respective  States  from 
"  imposing  such  imposts  on  foreigners  as  their  own  people  are  subjected 
to."  What  is  called  "  head-money "  may  now  bo  imposed  by  the 
United  States  alone  a^  a  tax  upon  immigration.     112  U.  S.  580. 

2  Cf.  United  States  bankruptcy  acts,  1800,  1841,  and  1867.  Perse- 
vering efforts  have  been  latterly  made  to  induce  Congress  to  establish 
a  permanent  national  bankruptcy  system,  but  hitlierto  success  has  not 
followed. 

3  Const.,  Art.  I.,  §  8,  fifth  clause. 

9 


130  CONSTITUTIONAL  STUDIES. 

British  pounds,  shillings,  and  pence,  in  earlier  days 
of  the  old  Confederacy.  Our  American  "dollar" 
mode  of  reckoning,  by  this  time  perfected  in  practice, 
is  the  best  that  ever  a  nation  could  invent ;  and  exact 
science  the  world  over  gains  gradual  familiarity  with 
a  like  convenient  standard  for  weights  and  measures. 
Under  Articles  of  Confederation  the  United  States 
derived  originally  the  sole  and  exclusive  authority 
of  fixing  a  standard  in  both  respects;  but  States 
were  not  forbidden  to  coin  money,  nor  was  heed 
given  to  regulating  foreign  coinage.^  An  absolute 
prohibition  of  coinage  or  bills  of  credit  to  the  States 
confirmed  the  Federal  power  in  this  new  grant  of 
1787 ;  ^  and  States  were  forbidden  moreover  by  that 
later  instrument  to  make  anything  but  gold  and  silver 
coin  a  tender  in  payment  of  debts. ^ 

Here  let  us  add  that  as  a  result  of  the  rulings  of 
our  supreme  tribunal  since  the  Civil  War,  Congress 
and  the  United  States  are  to  be  deemed  under  no 
such  constitutional  constraint  as  the  States  with 
regard  to  coinage  and  a  currency.  The  ills  of  irre- 
deemable paper  money  which  sovereign  fiat  invests 
with  the  deceptive  potency  of  a  legal  tender  for 
debts  were  so  widely  felt  in  the  old  Revolutionaiy 
age,  both  in  continental  and  State  currency,  that  the 
present  constitutional  prohibition  resulted  in  1787,  — 
universal,  one  would  have  thought,  so  far  as  Ameri- 
can experience  had  supplied  an  argument.  And 
such  appears  to  have  been  the  prevalent  belief  down 
to  our  Civil  War;  "bills  of  credit"  having,  neverthe- 
less,  the  restricted  sense  of  a  currency  intended  to 

1  Articles,  IX.,  fourtli  clause.  "The  solo  and  exclusive  i'i,',Iit  and 
power  of  rcf^uiating  the  alloy  and  value  of  coin  struck  hy  their  own 
authority,  or  hy  that  of  the  respective  States ;  fi.King  the  standard  of 
weights  and  measures  throughout  the  United  States." 

2  Const.,  Art.  I.,  §  10. 

3  Ih. 


FEDERAL  MONEY  POWER.  131 

circulate  fully  as  money,  and  emanating  directly  from 
the  sovereign  as  its  responsible  source  and  creator.  ^ 
But  under  the  tremendous  stress  of  conflict,  and 
while  the  Union  was  in  imminent  peril.  Congress,  by 
the  Act  of  February,  1862,  and  later  statutes,  author- 
ized the  issue  of  notes  amounting  to  four  hundred 
million  dollars,  as  a  currency  to  be  issued  on  the 
credit  of  the  United  States  for  general  circulation, 
and  with  the  inherent  quality  of  a  legal  tender  for 
private  debts.  After  the  bloody  strife  had  ended, 
and  the  Union,  vindicated  in  its  national  supremacy, 
sought  to  recuperate  its  financial  strength,  the  Supreme 
Court  of  the  United  States  sustained,  not  without  a 
struggle,  the  full  legality  of  a  national  paper  tender 
currency  for  peace  or  war ;  concluding  at  length  that 
the  express  prohibition  of  bills  of  credit  and  a  non- 
metallic  currency  to  the  several  States  carried  no 
implied  prohibition  to  the  United  States,  and,  in  short, 
that  Congress  was  unrestrained  in  its  constitutional 
discretion  upon  the  whole  subject  of  a  national  cur- 
rency standard,  whether  for  making  paper  money,  or 
gold  and  silver  coin,  or  coin  of  either  metal  alone,  a 
legal  tender. 2 

The  constitutionality  of  a  national  bank,  a  doctrine 
which  the  Supreme  Court  has  constantly  maintained 


1  Where  a  State  creates  a  bank  which  issues  notes  on  its  own  credit, 
there  is  no  such  prohibition,  though  the  State  shouhl  own  all  the  stock. 
13  How.  12;  11  Pet.  311 ;  1  Schoul.  Pers.  Prop.,  §  349. 

2  For  these  decisions,  which  many  sound  statesmen  must  deplore  in 
the  swee])iug  force  of  their  latest  judicial  utterance,  see  110  U.  S.  421  ; 
also  12  Wall.  (1871),  overruling  8  Wall.  G03  (1870);  1  Schoul.  Pers. 
Prop.  §  345,  etc.  The  "greonhack"  or  yjaper-money  craze  which  made 
about  the  time  of  those  decisions  an  exciting  issue  in  national  politics, 
was  succeeded  years  later  by  a  new  agitation  in  favor  of  silver  mono- 
metallism as  against  the  world's  gold  standard.  '^Die  Presidential 
election  of  1896  seems  to  have  decided  the  issue  unfavorably  to  those 
who  desire  to  lower  the  money  standard  of  the  Union  by  legitimizing 
a  cheaper  substitute. 


132  CONSTITUTIONAL   STUDIES. 

in  tliis  and  other  connections,  is  another  issue  over 
which  American  parties  have  contendetl  at  different 
epochs  of  our  national  existence.^ 

The  next  enumerated  power,  to  provide  punish- 
ment for  counterfeiting  tlie  securities  and  current  coin 
of  the  United  States,  is  an  added  constitutional  grant 
which  flows  readily  from  the  preceding  one.^ 

VI.  The  power  to  establish  post-offices  and  post- 
roads  was  novel  only  in  respect  to  the  latter;  for  the 
post-office,  as  conducted  on  a  continental  footing, 
originated  under  the  King  in  colonial  times,  and  Ar- 
ticles of  Confederation  had  simply  sanctioned  and  con- 
tinued a  "sole  and  exclusive  right  and  power  "  in  the 
Union,  recognized  long  before  as  of  great  general 
utility.-^  An  establishment  dating  back  to  ancient 
history  and  ancient  nations,  as  one  for  sovereign  con- 
venience, proves  in  our  modern  times  an  institution 
conducted  equally  for  popular  benefit,  though  still 
under  sovereign  direction.  Concerning  that  power 
newly  added  to  establish  post-roads,  the  "  Federalist," 
in  1788,  described  it  deprecatingly  as  "harmless," 
and  "perhaps  productive  of  great  conveniency, "  when 
judiciously  managed. ^  Considering  the  customs  and 
character  of  mail  transportation  when  our  constitution 

1  See  1  Sclionl.  T'ers.  Prop.,  §  350;  4  Wheat.  316.  Instead  of  the 
siugle  corporate  hank  with  State  hranches,  that  odious  institution  of 
our  government  in  former  days,  we  now  have  hical  lianks  hrought 
within  tlie  scope  of  a  national  system  and  subjected  to  a  prudent 
national  supervision. 

2  Const.,  Art.  I.,  §  8,  sixth  clause.  States  are  allowed,  in  further- 
ance of  the  national  power  over  the  coinage,  to  pnnisli  such  crimes  iu 
their  own  tribunals.     See  furtlicr  as  to  judiciary,  post,  ix. 

^  "Establisliing  and  regulating  post-ofBces  from  one  State  to  an- 
other, tliroughout  the  United  States,  and  exacting  such  postage  on  tlie 
papers  passing  througli  the  same  as  may  l)e  requisite  to  defray  the 
expenses  of  the  .said  oflice."    Articles,  IX.,  fourth  clause. 

*  Federalist,  No.  42. 


PATENTS  AND    COPYRIGHTS.  133 

was  cadopted,  nothing  more  was  probably  meant  here 
than  to  empower  Congress  to  designate  what  local 
roads  should  be  mail  routes  with  an  appropriate  right 
of  way;  but  no  such  narrow  construction  is  in  this 
day  favored;  and  during  the  present  century  many 
have  argued  from  this  clause  a  comprehensive  power 
in  Congress  to  make,  establish,  and  repair  independent 
national  higliways,  and  even  to  buy  up  and  control 
at  discretion  all  railway  and  telegraph  systems  through- 
out the  country  on  behalf  of  the  Union,  ^  The  power 
to  establish  post-offices  doubtless  includes  eveiything 
which  may  be  essential  to  a  complete  postal  system 
under  Federal  control  and  management,  including 
the  power  to  protect  and  carry  all  mails  without  local 
hindrance  or  obstruction. ^ 

VII.  The  power  to  grant  patents  and  copyrights. 
"  To  promote  the  progress  of  science  and  useful  arts  " 
is  the  announced  purpose  of  this  next  grant  to  Con- 
gress ;  and  the  announced  method  is  "  by  securing  for 
Imiited  times  to  authors  and  inventors  the  exclusive 
right  to  their  respective  rights  and  discoveries."^ 
But  an  exclusive  right  to  registered  trade-marks  is 
not  comprehended  within  this  power  of  Congress  to 


^  See  158  U.  S.  564.  Interstate  commerce  and  other  stated  powers 
are  cited  in  furtherance  of  this  authority.  Practical  difficulties  arise, 
however,  under  our  constitutional  and  complex  system  of  government 
wlien  such  projects  are  put  in  practice.  The  great  "  national  road  " 
which  Congress  began  constructing  with  enthusiasm  in  the  era  follow- 
ing tlie  War  of  1812  cost  about  $0,670,000;  but  doubts  were  presently 
raised  as  to  whether  Federal  power  existed  for  collecting  tolls  or  assess- 
ing local  taxes  for  keeping  the  grand  liighway  in  repair,  and  finally 
the  whole  stupendous  undertaking  was  abandoned,  and  the  road  was 
donated  to  the  several  States  in  which  the  various  sections  lay. 

-  158  U.  S.  564.  Lottery  or  other  immoral  matter  may  be  excluded 
from  the  mails  at  Congressional  discretion.  96  U.  S.  727 ;  143  U.  S. 
110,  207. 

8  Const.,  Art.  I.,  §  8,  eighth  clause. 


134  CONSTITUTIONAL   STUDIES. 

legislate  for  individual  monopoly.  ^  The  utility  of 
some  national  system  of  patent  and  copyright  protec- 
tion is  not  questioned,  and  much  of  the  marvellous 
development  of  America  in  authorship  and  invention, 
adding  immensely  to  the  wealth  and  dignity  of  the 
whole  people,  is  due  to  its  stimulating  influence. 
The  mother  country  had  educated  America  to  such  a 
system;  but  the  whole  subject  prior  to  1787  was  left 
when  index^eudence  was  declared  to  separate  State 
policy  and  regulation.  Popular  institutions,  it  is 
true,  do  not  greatly  favor  the  idea  of  monopolies  to 
individuals  for  their  private  benefit,  nor  has  public 
sentiment  in  the  United  States  yielded  readily  our 
cheap  reprints  of  foreign  books  in  favor  of  interna- 
tional copyright  protection, ^  such  as  treaty  and 
reciprocal  legislation  now  secure.  An  effort  failed  in 
the  Convention  of  1787  to  enlarge  the  scope  of  the 
present  clause  so  as  to  permit  of  special  national 
rewards  and  immunities  to  persons  engaged  in  agri- 
culture, manufactures,  and  commerce.  But  as  con- 
cerns domestic  patents  and  copyrights  throughout  the 
United  States  alone,  the  power  here  conferred  upon 
the  Union  is  ample  and  effectual  as  well  as  popular, 
nor  has  Congress  hesitated  to  tal^e  and  keep  control 
of  the  subject.  It  is  wholly  discretionary  with  that 
body  to  make  general  or  special  grants  or  extensions, 
to  either  authors  or  inventors,  in  tliis  connection.^ 

1  100  U.  S.  82.     See  111  U.  S.  53. 

2  See  Act,  March  3,  1891,  c.  5G5 ;  8  Pet.  .'591. 

^  See  at  length  1  Schoul.  I'crs.  I'rop.,  §§  518-.'j41.  As  a  subject  of 
judicial  exposition  the  law  of  Patents  and  Copyrights  is  interesting 
and  fruitful.  Under  our  present  acts  of  Congress  patents  for  inven- 
tions (based  upon  novelty  and  utility)  are  regularly  granted  for  the 
term  of  seventeen  years.  U.  S.  lie  v.  Stats.,  §§  4883-4936.  Copyrights 
are  limited  to  twent^'-eight  years,  with  the  furtlier  riglit  of  extension 
in  specified  instances  for  fourteen  years.  States  may  regulate  as  an 
exercise  of  police  power  tlie  use  of  jjatented  articles,  but  they  cannot 
semhh  restrict  the  sale  of  patent  riglits.     See  97  U.  S.  501. 


PIRACIES  AND  FELONIES.  135 

VIII.  Passing  over  tlie  Federal  power  to  constitute 
tribunals  inferior  to  the  Supreme  Court,  —  a  topic  to 
be  considered  in  a  later  connection,^  —  we  come  to 
that  of  defining  and  punishing  "  piracies  and  felonies 
committed  on  the  high  seas  and  offenses  against  the 
law  of  nations.  "2  This,  too,  has  its  appropriate  root 
in  a  Federal  judicial  establishment,  vested  with  full 
admiralty  jurisdiction;  but  the  grant  itself  is  a 
corollary  of  those  vast  powers  of  war,  foreign  rela- 
tions, and  ocean  commerce  and  navigation  which  we 
at  length  find  fully  connnitted  to  the  Union  by  the 
present  instrument.  Criminal  jurisdiction  of  the 
United  States  harmonizes  with  Federal  responsibility 
on  the  high  seas ;  and  by  "  high  seas  "  is  meant  not 
the  ocean  only,  but  all  tide -waters  along  the  coast 
below  low- water  mark.^  Piracy  is  a  well-undei'stood 
offence,  by  the  law  of  nations,  corresponding  with 
robbery  on  land,  which  also  is  forcilile  and  not  seldom 
accompanied  by  murder  or  personal  violence.  By 
felony  is  meant  at  common  law  a  foul  crime,  more 
heinous  than  a  misdemeanor;  and  the  power  of  Con- 
gress to  define  as  well  as  punish  piracy,  felony,  and 
offences  against  the  law  of  nations,  confers  unques- 
tionably a  flexible  discretion  over  all  infamous  crimes 
whatever,  when  perpetrated  not  on  land  but  the  high 
seas.* 

1  CoDst.,  Art.  I.,  §  8,  uiiith  clause.     See  Judiciary,  iiost,  ix. 

2  Const.,  Art.  I.,  §  8,  tenth  clau.se. 

8  5  Wheat.  7G,  184.  There  is  (Jivisum  imperium,  as  between  the 
Union  and  individual  States,  over  the  coast  between  high  and  low- 
water  mark.     As  to  a  guano  island,  see  137  U.  S.  202. 

■*  A  crime  on  the  hi<i;h  seas  committed  upon  a  foreign  ship  by  a 
foreign  subject  i.s  not  within  the  jurisdiction  of  tlie  United  States. 
3  Wheat.  610. 

Articles  of  Confederation  (IX.,  first  clause)  gave  Congress  the  power 
of  "appointing  courts  for  the  trial  of  piracies  and  felonies  committed 
on  the  high  seas ; "  but  as  no  clear  and  efficient  judiciary  for  the 
Union  was  ordained  by  those  Articles,  the  grant  was  of  little  practical 
gain. 


136  CONSTITUTIONAL  STUDIES. 

IX.  "  To  declare  war,  grant  letters  of  luarque  and 
reprisal,  and  make  rules  concerning  captures  on  land 
and  water,"  is  the  next  power  enumerated  in  order. ^ 
And  here  in  unreserved  and  unambiguous  terms  was 
that  vast  obligation  finally  placed  upon  the  Union 
which  it  had  exercised  by  common  consent  on  behalf 
of  the  States  and  the  whole  people  from  the  very 
first  initiation  of  hostile  resistance  to  Great  Britain. 
This  war  power  is  rounded  out  fully  in  the  five 
clauses  which  follow. ^  War  with  Great  Britain,  \\q 
should  remark,  was  hardly  a  war  in  the  international 
sense,  but  rather  the  gradual  enlargement  of  rebellion 
into  a  revolution.  But  Articles  of  Confederation, 
recognizing  the  permanent  necessity  of  union  for 
measures  offensive  or  defensive,  gave  to  the  United 
States,  as  grand  representative  in  all  foreign  relations, 
"  the  sole  and  exclusive  power  "  in  Congress  assembled 
"of  determining  on  peace  and  war,"  except  so  far 
as  States  might  engage  single-handed  in  war  under 
specific  emergencies.^  So,  too.  Congress  was  invested 
by  those  Articles  with  sole  and  exclusive  power  of 
granting  letters  of  marque  and  reprisal  in  times  of 
peace, ^  a  hostile  proceeding  nearly  tantamount  to 
beginning  war,  —  as  also  of  making,  after  a  feeble 
fashion,  its  own  general  rules  concerning  captures  on 

*  Const.,  Art.  I.,  §  8,  eleveuth  clause.  See  corresponding  proliihi- 
tion  on  States,  §  10,  tliird  clause,  post,  page  155. 

'•^  Const  ,  Art.  I.,  §  8,  twelfth  tlirough  sixteenth  clauses,  to  be  con- 
sidered in  due  order. 

3  Articles,  IX.,  excepting  VI.  Tliat  exception  resemhled  in  the 
main  that  of  our  present  Const.,  Art.  I.,  §  10. 

*  Articles,  IX.,  first  clause.  Under  tlie  Confederation,  States  miglit, 
under  Congressional  regulation,  gi-aiit  letters  of  marque  and  reprisal 
against  the  ])ublic  enem\'  in  time  of  war  (Articles,  VI.,  fifth  clause) ; 
but  that  right  was  wholly  taken  away  by  the  present  constitution. 
(Const.,  Art.  I.,  §  10.)  Under  the  Confederation,  a  State  might,  if 
infested  by  jiirates,  fit  out  vessels  of  war  against  tliom  for  tlie  occasion, 
or  at  least  until  Congress  should  determine  otherwise.  Articles,  VI., 
fifth  clause. 


FEDERAL    WAR  POWER.  137 

land  or  water.  ^  'ilie  later  constitution  allows  Con- 
gress to  declare  war  or  grant  letters  of  marque  and 
reprisal  by  the  simple  majority  of  a  quorum  or  by 
two-thirds  over  a  Presidential  veto,  after  the  usual 
course  of  legislation ;  but  under  the  earlier  Confedera- 
tion no  such  hostile  step  could  be  taken,  without  the 
affirmative  consent  in  Congress  of  nine  out  of  the 
thirteen  State  delegations. ^  On  the  other  hand,  the 
power  of  our  Confederate  Congress  embraced  clearly 
the  determination  of  both  war  and  peace,  while  that 
of  the  Congress  of  our  constitution  is  in  expression 
confined  to  war  alone,  since  the  full  treaty-making 
power  is  lodged  by  the  latter  instrument  (which 
makes  no  mention  of  declaring  peace  at  all)  with 
that  new  branch  of  government,  the  Executive,  sub- 
ject to  a  two-thirds  ratification  in  the  Senate.^  Such, 
indeed,  is  executive  discretion,  as  ordained  in  1787 
for  war  and  diplomatic  dealings,  that  the  initiation 
or  prosecution  of  foreign  war  becomes  a  sort  of  co- 
ordinate trust  to  which  the  concurrence  of  President 
and  Congress  is  essential  for  preventing  public  dis- 
aster and  disgrace.  As  imposing  a  salutary  check 
upon  precipitate  folly  and  unrighteousness  in  either 
branch  of  government,  this  is  perhaps  of  real  national 
advantage.  For  if  President  and  Congress  are  at 
issue  upon  the  desirableness  of  immediate  war  with 
any  foreign  power,  each  may  thwart  the  other  unless 
public  sentiment  irresistibly  forces  a  joint  decision. 

^  There  was  no  potent  Federal  puliciary  under  the  Confederation  ; 
yet  Congress  was  permitted  in  express  terms,  more  verbose  than  in  our 
present  constitution,  to  establish  rules  for  deciding  "  what  captures  on 
land  and  water  shall  be  legal,"  and  in  what  manner  prizes  taken  by 
land  or  naval  forces  in  the  service  of  the  United  States  should  be  di- 
vided ;  and  had  also  power  for  "  establishing  courts  for  receiving  and 
determining  finally  appeals  in  all  cases  of  captures."  Articles,  IX., 
first  clause. 

-  Supra,  page  88. 

3  Const.,  Art.  II.,  §  2. 


138  CONSTITUTIONAL  STUDIES. 

In  Great  Britain,  the  Crown  has  the  exchisive 
power  to  dechire  war;  and  usually  the  earlier  })rac- 
tice  of  nations  lias  regarded  the  determination  of  war 
or  peace,  like  the  prosecution  of  hostile  or  pacific 
foreign  intercourse,  an  executive  function.  Such  is 
not  American  precedent;  though  beginning  with 
entire  Congressional  sovereignty  in  things  national, 
our  people  transferred  a  large  share  of  that  sover- 
eignty to  the  Executive,  when  other  departments  of 
government  were  added  to  the  Legislature.  Presi- 
dent Polk  in  1846,  and  President  Lincoln  in  1861, 
gave  proof  that  though  the  power  to  declare  formal 
hostilities  may  reside  in  Congress  and  the  legislative 
branch,  the  opportunity  to  lead  up  to  war  is  inci- 
dental rather  to  executive  policy.  President  Madison, 
in  1812,  yielded  perhaps  to  the  passionate  eagerness 
of  young  leaders  in  Congress  by  sanctioning  the 
declaration  of  a  second  war  against  Great  Britain, 
after  having  first  exhausted  all  honorable  means  of 
adjustment  with  that  country.  But  in  all  instances 
hitherto  a  President  of  the  United  States  has  initiated 
war  measures,  and  his  message  to  Congress  recom- 
mending hostilities  has  preceded  the  concurrent 
action  of  that  body  and  roused  the  popular  passion. 
Despatch  and  secrecy,  no  less  than  open  energy,  are 
found  ingredients  in  the  successful  conduct  of  a  war, 
and  only  an  executive  can  manage  and  negotiate  in 
detail,  or  be  clearly  cognizant  of  the  real  drift  of 
foreign  relations.  Congress  holds  the  purse-strings, 
to  be  sure,  and  is  capable  of  regulating  considerably 
by  favoral)le  or  unfavorable  legislation.  Congress 
may  even  by  impeachment  install  the  next  Executive 
in  succession;  but  it  is  the  President  after  all  who 
rightfully  expends  the  money,  selects  all  subordi- 
nates, directs  military  operations,  and  arranges  a 
settlement.     Concurrence  of  Executive  and  Congress 


FEDERAL    WAR  POWER.  139 

is  therefore  indispensable  in  war  measures,  sooner  or 
later,  to  save  from  disaster. 

War  is  said  to  be  "that  state  in  which  a  nation 
prosecutes  its  right  by  force;  "^  a  definition  fair 
enough  if  we  further  allow  that  one  or  another  of 
two  belligerents  is  likely  to  be  in  the  wrong,  while 
the  only  arbitrament  of  right  is  violence  with  a 
mutual  appeal  to  God  and  mankind  to  witness  and 
aid  the  vindication.  War,  or  at  least  a  state  of 
hostilities,  may  practically  exist  in  advance  of  its 
declaration  and  announcement  by  Congress  and  legis- 
lative provision,  through  invasion  of  some  foreign 
power,  or  because  of  armed  insurrection  on  a  scale 
which  menaces  the  safety  of  the  Union,  whereupon 
the  President  as  commander-in-cliief  of  the  army  and 
navy  may  at  once  recognize  and  repel  as  befits  the 
emergency.''^  When  war  exists,  this  government  pos- 
sesses and  may  exercise  all  those  vast,  extreme,  and 
often  despotic  powers  that  any  belligerent  sovereignty 
wields  under  the  rules  of  war  currently  recognized 
among  civilized  nations ;  among  which  are  powers  to 
acquire  territory  either  by  conquest  or  treaty,  to 
seize  and  confiscate  an  enemy's  property  on  sea  or 
land,  to  create  military  commissions,  and  to  establish 
provisional  military  governments  and  provisional 
courts  in  each  conquered  jurisdiction.^  But  where 
the  State  civil  courts  are  discharging  their  usual 
functions,  and  are  capable  of  enforcing  the  usual 
authority,  the  government  of  this  Union  cannot,  as 

1  2  Black.  635,  666. 

2  2  Black.  635,  668.  Congress  and  the  President  in  declaring  the 
Mexican  War  in  1846  put  it  artfully  as  already  existing  by  the  act  of 
Mexico.  In  1861  the  I'resident  pursued  his  chosen  course  in  dealing 
with  armed  rebellion  at  the  south  for  mouths  before  Congress  could 
convene  and  legalize  hostilities.  In  1798  Congress  authorized  partial 
hostilities  against  France. 

3  9  Wall.  129. 


140  CONSTITUTIONAL  STUDIES. 

to  its  own  civil  inhabitants  who  dwell  outside  the 
area  of  active  warlike  operations,  displace  them  by 
courts-martial.  ^ 

As  for  making  and  declaring  peace,  the  power,  as 
already  observed,  pertains  no  longer  to  Congress, 
but  is  lodged  for  negotiation  and  conclusion  in  the 
President.  But  every  treaty  with  a  foreign  govern- 
ment requires  the  concurrence  of  two-thirds  of  our 
Senate ;  '^  and  the  House  of  Representatives  has  some- 
times claimed,  not  without  reason,  that  if  a  money 
appropriation  or  the  relinquishment  of  public  terri- 
tory should  be  involved  in  any  treaty  to  end  or 
prevent  war,  its  own  practical  concurrence  by  a 
majority  should  not  be  ignored.^ 

X.  The  next  power  stated,  "to  raise  and  support 
armies,"  is  in  direct  furtherance  of  the  war  power 
conferred  in  the  preceding  clause.  More  than  this, 
the  Federal  power  to  raise  and  support  armies  is  not 
only  indispensable  to  foreign  war  or  the  suppression 
of  domestic  insurrection,  but  a  needful  precaution 
for  preserving  peace  at  all  times.  "  Join  or  die  "  was 
the  motto  of  the  Revolution,  not  for  those  times 
alone;  and  the  league  or  combination  of  force  under 
union  and  united  direction  has  been  fundamental  in 
all  military  operations  on  this  continent  from  the  first 
era  of  colonial  settlement.*  But  under  Articles  of 
Confederation  and  throughout  the  conduct  of  our 
war  for  independence,  the  Union  was  much  hampered 
by  the  restrictions  which  State  jealousy  had  placed. 
The  Continental  Congress  raised  its  continental 
army;    not   immediately,    however,    but  by   making 

1  4  Wall.  2.  2  Const.,  Art  II.,  §  2. 

8  Fortunately  the  United  States  has  waged  no  war  thus  far  which 
ended  in  the  relinquishment  of  public  territory  or  the  payment  of  an 
indemnity  to  the  adversary. 

*  See  New  England  Confederation,  supra,  page  73. 


FEDERAL  ARMY  AND  NA  VY.  141 

requisitions  on  the  various '  States  from  time  to  time 
for  their  several  quotas,  and  this  only  by  the  vote  of 
nine  States  in  that  body.^  For  past  experience  had 
given  these  rebellious  colonists  great  dread  of  a 
standing  array.  Under  our  constitution  we  have  by 
usage  (1)  the  regular  army  raised  and  maintained  by 
and  for  the  Union,  but  small  in  numbers  when  on  a 
peace  footing;  (2)  in  great  emergencies  of  war  or 
insurrection.  State  volunteers,  with  quotas  still 
assigned  by  the  President,  where  the  States  recruit 
and  organize,  making  State  pride  a  thrilling  incentive 
to  patriotism. 2  In  either  case  the  troops  are  sworn 
into  the  service  of  the  United  States  for  active  duty, 
and  serve  accordingly  under  the  terms  of  their  enlist- 
ment, though  the  regimental  officers  of  State  volun- 
teers are  commissioned  b}^  the  State,  much  the  same 
as  in  the  days  of  the  Confederacy.'^  Congress  may 
in  times  of  danger  empov/er  a  draft  upon  the  able- 
bodied  men  of  the  Union  when  volunteering  fails.* 
But  the  main  reliance  of  the  Union  for  peace,  and 
the  lesser  outbreaks  of  war  or  rebellion,  must  be,  as 
hitherto,  its  own  regular  army,  immediately  respon- 
sible, kept  in  constant  training  and  discipline,  offi- 
cered throughout  by  the  Federal  Executive,  and 
under  direction  of  the  war  department  stationed  in 
detachments  to  guard  our  national  frontiers  and 
territories,  garrison  the  forts,  and  as  a  military  police 
protect' the  public  property  and  reservations  at  all 
needful  points. 

Fitly  environed  for  political  leadership  in  North 

1  Articles,  VII.,  TX.,  fifth  clause. 

2  State  volunteers  with  vState  quotas  were  mucli  relied  upon  in  1812 
and  1861. 

8  See  supra,  pages  90,  91 . 

*  Men  were  drafted  for  the  Civil  War  in  1863-1864.     A  draft  was 
seriously  proposed  in  1814,  but  peace  came  suddenly,  and  the  occasion 


142  CONSTITUTIONAL  STUDIES. 

America,  relieved  from  all  heavy  anxieties  of  the 
European  balance  of  power,  and  easily  first  among 
nations  of  the  new  world,  the  United  States  has 
fortunately  required  thus  far  but  a  small  standing 
army  for  ordinary  times.  And  to  guard  against  the 
possible  abuses  of  a  permanent  establishment,  our 
present  constitution  expressly  limits  all  army  appro- 
priations to  the  term  of  two  ^-ears.^  In  a  rare  instance 
or  two  the  House  of  Representatives  has  thus  exerted 
its  control  of  the  military  purse  to  check  dangerous 
tendencies.  2 

XI.  "To  provide  and  maintain  a  navy"  is  the 
next  and  associated  power. ^  Not  only  for  active 
war,  for  the  defence  of  ports  and  harbors  and  opera- 
tions on  navigable  waters  conjointly  with  our  land 
forces,  but  for  the  constant  protection  of  the  ocean 
highways  and  the  safeguard  of  American  commerce, 
and,  moreover,  as  an  imposing  means  of  gaining  con- 
fidence and  respect  for  the  American  name  and  flag 
in  distant  ports,  the  navy  of  the  United  States  was 
broadly  founded.  In  Revolutionary  times  some  estab- 
lishment of  the  sort  existed ;  but  Confederate  author- 
ity was  so  hemmed  in  by  State  emulation  in  this 
respect  that  except  for  privateering,  very  little  prow- 
ess by  water  redounded  to  the  glory  of  the  Union.* 

1  Const.,  Art.  I.,  §  8,  twelfth  clause. 

2  As  in  lS.")f),  when  military  force  had  been  nscd  to  coerce  the 
free  settlers  in  Kansas  Territory,  f)  Schoul.  United  States,  348.  This 
stoppage  of  supi)lie3  was  an  old  expedient  of  the  British  House  of 
Commons. 

^  Const.,  Art.  I.  §  8,  thirteenth  clause. 

■•  'I'he  Union  was  authorized  "  to  build  and  equip  a  navy,"  and  to 
appoint  "all  the  officers  of  tiie  naval  forces."  Articles,  IX.,  fourth 
and  fifth  clauses.  The  assent  of  nine  States  was  needful,  however,  for 
agreeing  U])on  the  naval  vessels  to  bo  built,  or  the  naval  forces  to  be 
raised,  or  for  the  appointment  of  a  naval  commander-in-chief.  Arti- 
cles, IX.,  sixth  clause. 


FEDERAL  ARMY  AND  NA  FT.  143 

Army  and  navy  were  forces  recognized  together  for  the 
Confederate  prosecution  of  war,  yet  as  States  might 
equip  their  own  navies  in  war  times  for  their  own  com- 
merce, concentration  was  not  easy;  ^  and,  furtliermore, 
whether  for  war  or  peace,  the  usefuhiess  of  a  Federal 
navy  was  quite  limited.  The  convention  of  1787 
readily  agreed  to  enlarge  the  existing  Federal  power; 
but  objection  was  made  in  some  of  the  State  conven- 
tions that  ratified.  Under  tliis  constitution,  the 
valor  of  our  infant  navy  in  conflicts  with  the  Barbary 
Pirate  States  and  during  the  War  of  1812  exalted  it 
to  a  proud  renown  which  has  never  since  been  tar- 
nished. Yet  a  naval  establishment  is  always  costly, 
and  in  the  long  intervals  of  peace  shipbuilding 
changes  its  methods,  and  expensive  hulks  decay  and 
become  worthless.  It  has  been  the  constant  rule  of 
our  more  perfect  Union  to  maintain  simply  a  regular 
navy  manned  and  officered  for  regular  service,  but  in 
great  emergencies  volunteer  officers  have  been  added 
to  the  list  of  those  in  regular  rank.^ 

Congress  may  farther  "  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and  naval  forces ;  "  ^ 
a  power  by  way  of  supplement  to  the  two  last  enu- 
merated. Though  not  specified  in  the  original  draft 
of  our  constitution,  the  convention  of  1787  readily 
admitted  the  power  as  incidental  and  explanatory. 
Such  rules  must  not  be  inconsistent  with  a  President's 
due  authority  as  commander-in-chief  of  the  army  and 
navy.*     Congress  has  by  law  forbidden  such  former 

1  The  real  prohibition  of  State  navies  was  for  times  of  peace,  and 
then  only  so  as  to  limit  each  State  to  such  a  number  of  war  vessels  as 
Congress  should  deem  necessary  for  the  State  defense  or  trade.  Arti- 
cles, VI.,  fourth  clause. 

-  Enlistments  are  thus  far  voluntary.  Probably  a  fair  and  impartial 
draft  for  the  navy  might  be  ordered  whenever  necessary ;  but  the  for- 
mer English  mode  of  impressments  was  never  permitted. 

8  Const.,  Art.  I.,  §  8,  fourteenth  clause. 

*  See  Executive,  post. 


144  CONSTITUTIONAL  STUDIES. 

cruelties  as  flogging  in  the  navy;  yet  for  the  most 
part,  and  subject  to  occasional  enactments  of  this 
sort,  the  discipline  and  regulation  of  both  army  and 
navy  belong  to  the  President,  acting  through  the 
respective  Secretaries  of  War  and  the  Navy.  All 
crimes  committed  in  strict  military  jurisdictions  by 
land,  or  on  board  naval  vessels,  are  punished  exclu- 
sively by  the  United  States,  and  usually  as  to  men  in 
service,  by  military  or  naval  courts-martial.^ 

XIL  "  To  provide  for  calling  forth  the  militia  to 
execute  the  laws  of  the  Union,  suppress  insurrections, 
and  repel  invasions  "  is  the  next  comprehensive  power 
given  for  the  self-maintenance  of  the  Union  by 
physical  force.  Reliance  mainly  upon  a  trained  and 
well-regulated  militia,  composed  of  the  mass  of  civil 
inhabitants  as  volunteers  primarily  and  not  conscripts, 
in  preference  to  any  standing  army  of  professional 
soldiers,  has  been  fundamental  in  the  States  of  free 
America  as  with  those  British-born  ancestors  who 
twice  dethroned  the  Stuarts. ^  Articles  of  Confedera- 
tion plainly  recognize  such  a  principle ;  ^  nor  was  the 
constitution  of  1787  deemed  satisfactory  to  the  people 
until  made  quite  explicit  in  upholding  that  doctrine.^ 
The  constitutional  object  of  calling  out  the  militia  is 
seen   to  be  not  for  offensive    war,    but   for   instant 

1  Supra,  page  1 13.  So  far  as  Union  authority  might  actually  extend 
in  such  matters,  tiie  Articles  of  Confetloration  ox))ressly  empowered 
"  the  United  States  in  Congress  assembled  "  to  make  rules  for  the  gov- 
ernment and  regulation  of  its  land  and  naval  forces,  and  directing  their 
operations.     Articles,  IX.,  fourth  clause. 

2  See  auprn,  page  33. 

^  While  the  several  States  arc  to  maintain  no  body  of  forces  in 
time  of  peace  except  for  garrisoning  tlie  local  forts,  "every  State 
shall  always  keep  np  a  well-regulated  and  disciplined  militia,  suffi- 
ciently armed  and  accoutred,"  besides  a  good  supply  of  military  stores. 
Articles,  VI.,  fourth  clause. 

*  See  Amendments  II.  and  III.  (1789). 


POWER    OVER  MILITIA.  145 

defence  against  sudden  danger  from  without,  and 
still  more  readily  for  putting  down  internal  outbreaks. 
It  is  in  the  latter  sense,  and  when  civil  authorities 
and  the  courts  were  found  powerless  or  remiss  in 
maintaining  order  and  national  obedience  within  State 
limits,  that  both  in  1794  and  1861  a  President  of  the 
Union  called  out  the  militia  of  other  States  for  a  few 
months  to  enter  the  disaffected  region  in  arms,  assign- 
ing to  each  State  its  proper  quota,  and  primarily 
confiding  in  State  executives  to  put  the  local  troops 
in  motion.  And  it  is  noticeable  that  in  each  instance 
a  regular  United  States  army  was  less  available  for 
quelling  disturbances ;  also  that  Congress  was  not  in 
actual  session,  and  prompt  executive  action  became 
needful  under  existing  laws  in  advance  of  particular 
legislation  for  raising  and  enlisting  troops  on  a  long 
term.  Regulars  have  served  alone  in  some  other 
outbreaks,  like  that  of  the  Mormons  of  Utah  Territory 
in  1857 ;  but  the  power  thus  inherent  in  the  Union 
dispenses  with  a  large  regular  army  for  ordinary  times 
while  enabling  the  Union  to  fulfil  its  fundamental 
guaranty  of  orderly  Republican  government.^ 

Congress  may  also  "provide  for  organizing,  arm- 
ing, and  disciplining  the  militia,  and  for  governing 
such  part  of  them  as  may  be  employed  in  the  service 
of  the  United  States,  reserving  to  the  States  respec- 
tively the  appointment  of  the  officers,  and  the  author- 
ity of  training  the  militia  according  to  the  discipline 
prescribed  by  Congress."  ^  States  felt  considerable 
alarm  over  the  power  vested  in  the  Federal  govern- 
ment l)y  this  and  the  preceding  clause.  They  feared 
that  the  Union  would  weaken  each  local  militia  for 

1  See  "guaranty  clause,"  Art.  IV.,  §  4.  Congress  under  the  Con- 
federation was  notoriously  deficient  in  power  to  summon  the  State 
militia,  as  the  Shays  Rebellion  manifested. 

2  Const.,  Art.  I.,  §  8,  sixteenth  clause. 

10 


146  CONSTITUTIONAL  STUDIES. 

strengthening  the  regular  army ;  and  hence  the  reser- 
vation here  asserted,  as  well  as  tlie  jealous  amend- 
ments of  1789.1  Congress  has  not  been  much 
disposed  thus  far  to  prescribe  for  the  militia  of  the 
States  a  national  uniform  "discipline,"  as  here  per- 
mitted, still  less  to  encroach  upon  the  important 
reserved  right  of  each  State  to  appoint  officers  and 
attend  to  the  training.  But  by  this  era  it  is  well 
settled  that  when  local  bodies  of  militia  (though 
State  forces  originally)  are  called  into  the  service  of 
the  United  States,  they  are  subject  not  only  to  the 
orders  of  the  President  as  commander-in-chief,  but 
also  to  those  of  any  officer  of  superior  rank  who  may 
under  the  President's  authority  be  placed  over  them 
and  their  State  commissioned  officers.  So,  too,  it  is 
settled  that  when  Congress  by  statute  gives  the  Presi- 
dent discretionary  authority  to  call  forth  the  militia 
in  time  of  peril,  this  makes  him  the  exclusive  judge 
as  to  when  or  whether  the  exigency  has  arisen,  so 
that  neither  State  executives  nor  militia  officers 
can  question  it.''^ 

XIII.  Exclusive  Federal  jurisdiction  over  Federal 
places  is  the  object  of  the  last  specific  power  here 
enumerated  on  belialf  of  Congress.^  Federal  juris- 
diction is  for  the  most  part  supei'posed  upon  that  of 
States,  except  for  the  territorial  domain  of  the  Union, 
where  statehood  is  as  yet  inchoate.  But  Federal 
government  requires  for  its  proper  exercise  some  local 
reservations  over  wliich  its  own  pernliar  jurisdiction 
and  authorit}' shall  be  sole  and  indisputable.     Hence, 

1  Ameiulments  II.  and  III.  The  States  have  always  assurance 
against  centralizeil  despotism  in  their  representation  in  Congress. 

-  7  How.  1  ;  5  Wlieat.  1.  During  tiie  W:ir  of  1812,  and  again  in 
1861,  some  State  governors  wlio  wore  nmvilling  to  furnish  quotas  took 
issue  witli  the  l^resident  on  this  ))oiiit  of  an  emergency. 

^  Coast.,  Art.  I.,  §  8,  seventeenth  clause. 


FEDERAL  SITES  RESERVED.  147 

first  of  all,  a  district  (not  exceeding  ten  miles  square) 
was  to  be  set  off  as  "  the  seat  of  the  Government  of 
the  United  States."  For  1783  had  not  been  forgot- 
ten, when  a  handful  of  mutineers  from  the  continental 
army  forced  Congress  from  Philadelphia,  the  State 
Executive  appearing  reluctant  to  interpose  his  protec- 
tion.^ For  the  first  few  years  of  our  constitutional 
government  New  York  and  then  Philadelphia  served 
as  temporary  headquarters  •  but  as  soon  as  a  district 
had  been  chosen  and  improved  for  a  Federal  capital, 
the  permanent  abode  on  the  Potomac  became  a  place 
of  exclusive  Federal  legislation  and  authority,  and 
as  time  showed,  the  essential  citadel  and  rallying- 
point  of  loyalty  to  the  Union.  ^  A  like  exclusive 
authority  is  vested  in  Congress  "  over  all  places  pur- 
chased by  the  consent  of  the  Legislature  of  the  State 
in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards,  and  other  needful 
buildings."  ^ 

1  1  Schoul.  United  States,  22.    See  146  U.  S.  325. 

2  Of  tlie  Federal  district  on  both  sides  of  the  Potomac,  ceded  by  the 
respective  States  of  Maryland  aud  Virginia  for  a  seat  of  governmeut, 
and  first  occupied  by  Congress  in  1800,  that  portion  south  of  the  Po- 
tomac was  retroceded  later  to  Virginia.  Washington  City  now  fairly 
occupies  the  whole  area  remaining.  Here  the  jurisdiction  of  Congress 
is  full  aud  unlimited,  both  in  a  political  aud  muuicipal  sense.  147  U.  S. 
282. 

3  Const.,  Art.  I.,  §  8,  sevcuteentli  clau.se.  To  preserve  the  forts  and 
other  property  belonging  to  the  whole  Union,  located  on  laud  which 
had  been  purchased  and  paid  for  by  the  general  government,  was  the 
plain  issue  wliich  fir.st  in  1861  united  tlie  loyal  population  under  Presi- 
dent Lincoln  against  States  in  rebellion. 


VII. 


FEDERAL    CONSTITUTION    ANALYZED;    FEDERAL 
AND   STATE   PROHIBITIONS. 

Before  passing  from  the  Federal  Legislature,  our 
constitution  enumerates  » sundry  prohibitions  which 
limit  or  are  correlative  with  the  important  powers 
just  recited.  These  prohibitions  are  either  (1)  upon 
Congress  and  the  United  States;  or  (2)  upon  the 
individual  States, 

I.  Prohibitions  upon  Congress  and  the  United 
States  occupy  the  ninth  section  of  Article  I.  Next 
after  a  constraint  long  since  obsolete,  but  honored  by 
Congress  while  it  lasted,^  comes  a  prohibition  against 
suspending  the  writ  of  habeas  corpus^  "unless  when 
in  cases  of  rebellion  or  invasion  the  public  safety  may 
require  it."^  Habeas  corpus  (recognized  but  not 
originating  under  Charles  II.  in  the  celebrated  Act 
of  1679)  v/as  a  right  highly  prized  by  English  free- 
men from  tlie  earliest  known  era  of  the  common  law ; 
and  under  such  a  writ,  issued  as  of  individual  right 
by  the  common-law  courts,  a  person  who  had  been 
deprived  of  liberty  was  discharged  from  illegal  im- 
prisonment.    Maxims  denouncing  all  arbitrary  sus- 

^  Const.,  Art.  I.,  §  9,  first  clause.  Tliis  constraint  upon  slave-trade 
proliibition  until  1808  (wiiicli  Art.  V.  undertakes  to  rivet  closer)  ad- 
mitted expressly  of  lej^islative  discouragement  in  tlie  meantime  by  a 
poll  tax  on  the  importation  of  slaves ;  yet  Congress  forl)ore  from  all 
sucii  action.  When  the  time  (1808)  arrived,  foreign  slave-trade  was 
formally  abolished.  Here,  as  elsewhere,  our  constitution  wisely  avoids 
using  the  word  "slave"  at  nil.     Cf.  page  105. 

2  Const.,  Art.  I.,  §  9,  second  clause. 


FEDERAL  PROHIBITIONS.  149 

pension  of  laws  are  to  be  found  botli  in  the  English 
bill  of  rights  and  the  Revolutionary  declarations  of 
our  old  thirteen  States,^  suspension  by  a  monarch 
being  chiefly  obnoxious.  Here  we  perceive  arbitrary 
suspension  equally  forbidden  in  sense  to  Executive 
and  Congress;  though  not  without  qualification,  as 
above  expressed,  for  great  exigencies  of  public  danger 
from  within  or  without,  when  suspension  has  always 
been  customary  to  a  certain  extent.  If  one  complain- 
ing of  unlawful  arrest  and  detention  sues  out  this 
writ,  he  is  brought  at  once  into  court  for  a  summary 
examination  of  the  facts,  and  the  court  orders  his 
discharge  if  the  detention  was  unlawful.  Suspension 
of  the  writ  of  habeas  corpus^  it  has  well  been  said,  is 
a  suspension  of  Magna  Charta,  and  nothing  but  a 
great  national  emergency  can  justify  or  excuse  it.^ 
The  power  to  suspend  in  permitted  exigencies  vests 
naturally  in  Congress;  but  whether  the  President 
may  not  himself  suspend  at  discretion  in  a  constitu- 
tional emergency,  especially  if  Congress  be  not  in 
session  and  time  presses,  is  open  to  fair  discussion.^ 

"No  bill  of  attainder  or  ex  jJost  facto  law  shall  be 
passed"  is  a  prohibition  to  the  Union  borrowed  from 
earlier  State  constitutions  and  State  declarations  of 
right ;  *  and  this  prohibition  is  expressly  extended  to 


^  Supra,  page  32. 

2  May,  Const.  Hist.,  ch.  11  ;  Cooley,  Element.s  300. 

^  During  the  Civil  War,  18G1-65,  President  Lincoln  claimed  and  re- 
peatedly exerci.sed  the  right  to  suspend  tlie  writ  of  habeas  corpus ;  and 
this  against  judicial  protest,  althougli  the  Supreme  Court  seems  never 
to  have  passed  directly  upon  that  question.  Taney,  246.  Even  after 
Congress  had  partially  defined  the  limits  of  e.xisting  suspension  he 
suspended  to  a  greater  extent,  on  the  cdaim  of  a  still  greater  exigency 
which  the  couflict  liad  developed.  It  would  appear  that  over  any  juris- 
diction which  an  executive  has  properly  declared  subject  to  martial 
law,  the  writ  of  habeas  corjjus  is  as  a  rule  properly  suspended.  7 
How.  1. 

*  Const ,  Art.  I.,  §  9,  third  clause.     Supra,  pages  36-38,  Maryland. 


150  CONSTITUTIONAL  STUDIES. 

all  States  by  a  later  section.  ^  The  clause  lias  exclu- 
sive reference  to  a  sort  of  criminal  legislation  justly 
abhorrent  to  liberty,  at  the  same  time  that  retrospec- 
tive civil  enactments  by  a  legislature  are  impolitic 
and  deserve  disfavor. ^  Among  tax  prohibitions  upon 
Congress  already  mentioned  as  qualifying  the  Federal 
power,  ^  we  find  the  rule  firmly  buttressed  that  every 
capitation  or  other  direct  tax  must  be  laid  proportion- 
ately to  a  census.*  "No  money,"  proceeds  the  text, 
"shall  be  di-awn  from  the  Treasury  but  in  conse- 
quence of  appropriations  made  by  law;  and  a  regular 
statement  and  account  of  the  receipts  and  expendi- 
tures of  all  public  money  shall  be  published  from 
time  to  time."^  And  finally,  to  confirm  the  equal 
rights  of  mankind  upon  which  the  American  govern- 
ment and  American  society  were  henceforth  to  rest, 
"  no  title  of  nobility  shall  be  granted  by  the  United 
States ;  and  no  person  holding  any  office  of  profit  or 
trust  under  them  shall,  without  the  consent  of  Con- 
gress, accept  of  any  present,  emolument,  office,  or 
title  of  any  kind  whatever,  from  any  king,  prince,  or 
foreign  State.  "^  States  are  forbidden,  besides,  to 
grant  any  title  of  nobility." 

1  Coust.,  Art.  I.,  §  10,  first  clause. 

■^  See  107  U.  S.  221  ;  152  U.  S.  377.  Any  law  is  ex  post  facto  which 
is  enacted  after  the  offence  was  committed,  and  which  in  relation  to 
the  crime  or  its  consequences  alters  the  situation  of  the  accused  to  his 
disadvantage. 

3  Const.,  Art.  I.,  §  10,  fourth,  fifth,  and  sixth  clauses;  supra,  page 
119. 

4  Ih.,  fourth  clause.  This  reiteration  comes  in  special  connection 
with  the  first  clause.     See  Article  V. 

'^  lb.,  seventh  clause.  This  admirable  and  business-like  provision 
exjdaius  its  own  purpose. 

"  Const.,  Art.  I.,  §  9,  eightli  clause.  States,  as  Marj-land,  for  in- 
stance, are  seen  to  have  fornmlated  already  for  themselves  the  prohibi- 


■^  CoTist.,  Art.  I.,  §  10,  first  clause.     And  see  prohibition  to  States 
in  Articles  of  Confederation. 


PROHIBITIONS   UPON  STATES.         151 

II.  The  prohibitions  upon  the  States  respectively 
are  found  in  section  10,  which  follows.  Some  of 
these  prohibitions  we  have  already  incidentally  men- 
tioned; as  against  granting  letters  of  marque  and 
reprisal,  coining  money,  emitting  bills  of  credit,  and 
making  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts ;  ^  constraints,  which  were  now 
laid  chiefly  for  giving  the  Union  its  free  and  untram- 
melled scope  on  such  national  subjects.  As  for  bills 
of  attainder,  ex  post  facto  laws,  or  the  grant  of  titles 
of  nobility,  always  undesirable,  express  prohibition  was 
enjoined  equally  upon  States  and  the  Federal  Union. ^ 
And  to  all  this  was  added,  that  "no  State  shall 
enter  into  any  treaty,  alliance,  or  confederation,"  a 
prohibition  absolute ;  ^  a  similar  prohibition  having 
applied  to  States  under  the  Articles  of  Confederation, 
thougli  less  concisely  and  with  the  soothing  qualifica- 
tion that  Congress  might  interpose  its  consent  and 
give  validity.*  The  omission  of  all  such  qualification 
from  the  new  and  more  peremptory  instrument  is 
quite  significant.^ 

tioii  of  "titles  of  nobility."  Supra,  T^age  38.  But  this  clause  comes 
more  directly  from  tlie  broadly  expressed  Articles  of  Confederation. 
"  Nor  sliall  any  person  holding  any  o'lice  of  profit  or  trust  under  the 
United  States,  or  any  of  them,  accept  of  any  present,  emolument,  office, 
or  title  of  any  kind  whatever  from  any  king,  prince,  or  foreign  State ; 
nor  shall  the  United  States  in  Congress  asseml)led,  or  any  of  them, 
grant  any  tiLle  of  nobility."     Articles,  VI.,  first  clause. 

1  Supra,  pages  130,  1.'56. 

'-  Supra,  page  149.     Const.,  Art.  I.,  §  10,  first  clause. 

2  Const,  Art.  I.,  §  10,  first  clause. 

4  "  No  State,  without  the  consent  of  the  United  States,  in  Congress 
assembled,  shall  send  any  embassy  to,  or  receive  any  embassy  from,  or 
enter  into  any  conference,  agreement,  alliance,  or  treaty  with  any  king, 
prince,  or  State."  Articles,  VI.,  first  clause.  "  No  two  or  more  States 
shall  enter  into  any  treaty,  confederation,  or  alliance  whatever  between 
them  without  the  con.sent  of  the  United  States,  in  Congress  assembled, 
specifying  accurately  the  ])nrposes  for  which  the  same  is  to  be  entered 
into,  and  bow  long  it  shall  continue."     Articles,  VI.,  second  clause. 

^  The  legal  bearing  of  tliese  phrases  and  their  historical  alteration, 


152  CONSTITUTIONAL   STUDIES. 

Another  phrase  in  this  tenth  section  ordains  in 
effect  that  no  State  shall  pass  any  law  "impairing 
the  obligation  of  contracts."^  The  underlying  prin- 
ciple of  such  an  interdict  is  salutary,  and  no  good 
reason  can  be  given  for  forbidding  States  alone,  and 
not  the  Federal  government  as  well,  except  the  pos- 
sible inadvertence  of  the  Philadelphia  convention. ^ 
Madison,  the  best-informed  member  of  that  body,  stig- 
matizes bills  of  attainder,  ex  i^ost  facto  lav/s,  and  laws 
which  impair  the  obligation  of  contracts  as  equally 
"contrary  to  the  first  principles  of  the  social  compact 
and  to  every  principle  of  sound  legislation."^  And 
he  further  intimates,  that  while  States  had  already 
begun  prohibiting  the  two  former  in  their  constitu- 
tions, and  while  all  three  prohibitions  were  within 
the  true  spirit  and  scope  of  State  fundaments,  a  dis- 
position for  sudden  changes  and  interference  with 
contracts  had  become  so  manifest  of  late  in  some 
State  legislatures  that  it  was  high  time  to  interpose 
this  new  constitutional  bulwark  on  behalf  of  private 
rights.^  A  century  has  justified  the  wisdom  of  that 
action,  for  few  clauses  in  the  present  constitution 
have  given  rise  to  more  constant  and  vehement  con- 
troversy in  the  courts.  To  the  long  array  of  judicial 
precedents  on  this  topic  the  reader  must  turn  for 
details ;  a  leading  case  in  the  Supreme  Court  on  final 
appeal,  that  of  Dartmouth  College,  establishing  long 
ago  that  this  prohibition  applies  to  the  State  Legisla- 
ture itself,  under  any  unqualified  grant  or  charter  by 

against  the  attempted  Sonthorn  Confederacy  of  1861,  appears  never  to 
have  received  the  attention  it  deserved  for  constitntional  discussion. 

1  Const.,  Art.  I.,  §  10,  first  chwsc. 

2  So,  too,  as  to  "  bills  of  credit,"  noted  supra.     See  110  U.  S.  633. 
8  Federalist,  No.  44. 

*  lb.  Federalist,  No.  7,  also  alludes  to  contemporary  State  laws  in 
violation  of  private  contracts,  which  amounted  to  an  aggression  on  the 
rights  of  other  States  whose  citizens  were  injured  hy  them. 


PROHIBITIONS   UPON  STATES.         153 

the  State  which  amounts  in  effect  to  ii  contract  with 
private  individuals.^  Legal  and  not  moral  obligation 
is  here  intended;  and  the  obligation  of  a  contract 
which  States  must  not  impair  is  the  legal  means  of 
enforcing  that  contract,  and  of  compelling  the  parties 
to  fulfil  it.  Hence,  whatever  State  legislation  may 
lessen  the  efficacy  of  these  means  of  enforcement 
impairs  the  obligation."  But  a  law  which  gives 
validity  to  what  was  a  void  contract  does  not  essen- 
tially impair  its  obligation,  unless,  at  least,  other 
vested  rights  must  suffer  in  consequence ;  ^  nor  is  a 
State  to  be  thus  debarred  from  forbidding  by  statute 
certain  kinds  of  contracts,  provided  that  its  enact- 
ment be  purely  prospective  in  operation.* 

The  two  remaining  clauses  under  present  considera- 
tion leave  each  constitutional  prohibition  upon  States 
optional  with  Congress,  as  under  the  old  Confederacy. 
Unless,  therefore,  Congress  consents,  no  State  shall 
"lay  any  imposts  or  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for  execut- 
ing its  inspection  laws ;  and  the  net  produce  of  all 
duties  and  imposts,  laid  by  any  State  on  imports  or 
exports,  shall  be  for  the  use  of  the  Treasury  of  the 

1  4  Wheat.  518.  Constraints  upon  local  legislation  under  a  State 
constitution  are  here  material ;  nor  can  essential  sovereign  powers  be 
bargained  away  by  a  legislature.  For  a  learned  summary  of  the  de- 
cisions see  Cooley,  Elements,  3 11 -327  ;  Story,  §  1385,  et  scq.  Executory 
and  executed  contracts  are  equally  within  the  protection  of  this  clause 
of  the  constitution.  But  the  contract  must  be  a  binding  one  at  law 
and  founded  upon  a  legal  consideration. 

It  is  State  constitutions  or  legislative  acts  which  this  clause  con- 
strains, not  mere  muuicii)al  ordinances  or  judicial  decisions.  163  U.  S. 
273;  146  U.  S.  258. 

2  16  Wall.  314. 

3  Story,  §  1385.  As  to  exempting  privilcgcil  persons  from  taxation, 
see  146  U.  S.  279. 

*  As,  for  instance,  forbidding  private  contracts  to  be  liereafter  made 
payable  specifically  in  gold.  A  State  may  suitably  reserve  the  right 
to  repeal  or  alter  any  charter  it  grants.     151  U.  S.  556. 


154  CONSTITUTIONAL  STUDIES. 

United  States ;  and  all  such  laws  shall  be  subject  to 
the  revision  and  control  of  the  Congress."  Tluis  the 
permissive  levy  of  customs  duties  to  a  State,  hence- 
forth peculiarly  a  national  resource,  was,  even  for  an 
extreme  State  purpose,  closely'  strained.^  Nor  was  a 
State  without  the  consent  of  Congress  to  lay  hence- 
forth "any  duty  of  tonnage."'^ 

Again,  no  State  shall  without  the  consent  of 
Congress  enter  into  any  agreement  or  compact  with 
another  State. ^  The  lesser  dread  of  such  compacts 
(for  under  this  composite  government  States  may 
still  make  compacts),  in  comparison  witli  any  con- 
federation or  alliance,^  supplies  the  permissive  assent 
of  the  Union  through  Congress.  Compacts  and 
agreements,  those  of  contiguous  States,  for  instance, 
upon  some  mutual  use  of  common  waters  or  a  span- 
ning bridge,  or  in  disputed  boundaries,  have  fre- 
quently been  made  since,  as  before,  the  adoption  of 
this  constitution  and  the  consent  of  Congress  removes 
all  national  impediment.  That  consent  need  not  be 
express  unless  in  some  extreme  case  affecting  Federal 
sovereignty,  but  is  inferable  from  indirect  Federal 
legislation  which  imports  a  sanction. ^  This  same 
qualified  prohibition  upon  the  States  applies  to  the 
less  probal)le  contingency  of  some  State  agreement  or 
compact  with  a  foreign  power,  as  distinct  from  a 
treaty.^ 

Finally,  no  State  shall,  without  the  consent  of 
Congress,   "keep  troops  or  ships  of  war  in  time  of 

1  Const.,  Art.  I.,  §  10,  second  clanse.     Cf.  supra,  page  118. 

2  lb.,  third  clause.  Htate  interference  by  its  own  impost  system, 
with  the  attem])tetl  stipulations  of  Federal  treaties  negotiated  in 
Europe,  was  an  evil  partly  guarded  against  in  Articles  of  Confedera- 
tion, VI.,  third  clause. 

^  Const.,  Art.  I.,  §  10,  3. 

^  Cf.  Ruprn,  page  151. 

6  1 1  Wall.  .39.     Sec  also  148  U.  S.  503. 

<5  Const.,  Art.  I.,  §  10,  3. 


PROHIBITIONS   UPON  STATES.         155 

peace;  "  nor  "engage  in  war  unless  actually  invaded 
or  in  such  imminent  danger  as  will  not  admit  of 
delay."  ^  The  former  prohibition  favors  one  regular 
army  and  navy  establishment  for  the  whole  Union, 
as  since  maintained;  the  reason  of  the  latter,  with  its 
contingent  exception,  is  obvious.  Rarely  in  these 
days  of  land  and  submarine  telegraph  and  rapid 
transit  would  a  State  find  itself  so  suddenly  in  the 
throes  of  a  foreign  war  as  to  be  compelled  to  fight 
before  the  Federal  government  could  come  to  its  aid; 
and  should  such  an  emergency  ever  arise,  the  sjDccial 
consent  of  Congress  would  doubtless  be  found  super- 
fluous. The  suggestion  of  all  this  came  from  the 
more  primitive  Articles  of  Confederation.^ 

Besides  the  distinction  among  express  State  prohi- 
bitions already  noticed  —  prohibitions  which  of  course 
bear  upon  all  States  alike  —  we  should  observe  that 
some  of  them  concern  delicate  functions  of  public 
sovereignty,  while  others  affect  rather  the  private 
rights  of  the  individual.  Other  prohibitions  ingenuity 
might  add  which  the  nature  and  practical  adjustment 
of  our  composite  government  naturally  imply;  and 
as  for  powers,  it  would  have  been  needless  for  the 
constitution  to  confer  any  powers  expressly  on  the 
States,  since,  as  a  recent  writer  ^  reminds  us,  they  or 
the  people  retain  all  powers  not  actually  taken  from 
them. 

1  Const.,  Art.  I.,  §  10,  3. 

-  See  Articles,  VI.,  5.  No  State  shall  enf^at^e  in  any  war  without 
the  consent  of  the  United  States,  in  Coiigro.'^s  a.ssembled,  unless  such 
State  be  actually  invaded  by  enemies,  or  shall  have  received  certain 
advice  of  Indian  invasion,  and  the  danger  is  too  imminent  to  admit  of 
a  delay  to  consult  Congress.  And  see  ih.  as  to  a  State  infested  by 
pirates.  As  to  keeping  up  State  war  vessels  or  a  State  army  in  time 
of  peace,  see  Articles,  VI.,  4. 

3  Mr.  James  Bryce,  American  Commonwealth. 


VIII. 

FEDERAL   CONSTITUTION   ANALYZED;   THE 
EXECUTIVE. 

The  Cliief  Executive  of  this  Federal  constitution 
was  a  new  creation.  His  prototype  is  seen  in  the 
State  Governor  enlarged  and  adapted  to  high  inter- 
course with  European  kings  and  potentates,  by  bor- 
rowing from  the  dignified  lustre  of  Holland  apd 
Great  Britain.  For  the  President  of  these  United 
States  was  to  be  a  ruler,  supreme  in  authority  before 
mankind  abroad  and  at  home  beyond  any  single  State 
Executive,  guardian  of  the  national  flag  and  resources 
through  peace  and  war,  and  fit  conductor  of  our 
common  destinies.  All  the  more  disposed  was  the 
convention  of  1787  to  give  stability  and  strength  to 
this  new  chief  magistrate,  when  the  Legislature  as 
finally  settled  was  found  to  have  broadened  the  old 
Continental  Congress  so  greatly  that  a  powerful 
balance  became  needful ;  and  when,  too,  it  was  con- 
ceded that  the  first  person  to  occupy  this  exalted 
station  would  be  the  safest  and  worthiest  of  all 
administrators,  and  the  peer  in  his  republican  sim- 
plicity of  any  monarch  of  the  old  world. 

The  powers  lodged,  therefore,  in  the  President  of 
the  United  States  by  our  Federal  constitution  were 
vast  and  energetic,  and  such  as  befitted  a  relation 
where  Congressional  encroachment  might  need  a 
strong  constraining  power.  No  duality,  no  directory, 
was  set  up  for  this  Federal  department,  such  as  some 
leading  States  in  their  dread  of  a  monarch  were  then 


THE  FEDERAL  EXECUTIVE.  157 

attempting.  There  was  not  even  a  cabinet  added  iu 
the  sense  of  a  controlling  ministry.^  The  President 
was  himself  the  suthcient  chief  magistrate  of  the 
Union,  em^iowered  to  take  confidential  or  pnblic 
advice  at  his  will,  and  to  summon  or  change  at 
pleasure  his  chief  department  heads  like  all  other 
high  Federal  officials,  subject  to  confirmation  by  the 
Senate.  A  wise  Executive  wdll  doubtless  unify  his 
administration  and  secure  efficient  action;  but  liis 
own  supreme  discretion  is,  after  all,  the  rule  of  action, 
aside  from  the  constitutional  direction  of  Congress; 
and  Presidents  have  successfully  pursued  that  rule 
at  times,  disregarding  Congressional  clamor,  and 
removing  summarily  a  department  secretary  who 
opposed,  while  rejecting  the  collective  advice  of  a 
cabinet.  2 

Our  Chief  Executive  has  his  own  responsibility  to 
the  people,  independently  as  to  tests  from  that  of 
either  branch  of  Congress;  and  Presidents  have 
remained  in  office  with  their  chosen  chief  counsellors 
while  both  Houses  of  Congress  surged  in  opposition. 
This  is  very  different  from  that  Parliamentary  direc- 
tion of  affairs  ])y  wdiich  ministries  are  displaced  when 
the  Legislature  votes  in  opposition.  Representative 
government  by  the  people  is  here  of  another  sort. 
The  Presidential  term  itself  is  limited  to  four  years, 
and  midway  comes  the  opportunity  to  strengthen, 
weaken,  or  secure  him  in  his  policy.     Hamilton   in 

1  No  idea  of  "  cabinet "  or  "  couucil "  deliberation  is  intimated  in 
this  constitution;  but  only  a  permission  given  to  the  President  to 
"require  the  opinion  in  writing"  of  the  principal  officer  in  each  execu- 
tive department  upon  any  subject  relating  to  his  own  official  duties. 
Const.,  Art.  II.,  §  2.  Our  present  Cabinet  meetings  with  Caliinet  vot- 
ing originated  in  a  chosen  usage  of  President  Washington,  which  most 
of  iiis  successors  Iiave  for  convenience  continued. 

2  E.  (J.,  Andrew  Jack.son  in  18.31  and  "tlie  removal  of  tiie  deposits." 
\l\xt  such  a  course,  when  public  o])inion  disapproves  and  both  Houses 
of  Congress  resist,  must  be  perilous. 


158  CONSTITUTIONAL  STUDIES. 

1787  would  have  preferred  the  tenure  of  life  or  good 
behavior;  Jefferson,  a  seven  years'  term,  once  and 
for  all;  but  the  constitution  as  framed  fixed  the 
moderate  term  of  four  years,  and  put  no  restraint 
upon  re-eligibility.  And  popular  usage  for  the  first 
half-century  made  each  President  the  leading  party 
or  non-partisan  candidate  for  re-election  a  second 
time,  with  eight  years  as  the  final  limit,  ^  —  a  usage 
much  modified  since  1840.2 

A  Vice-President  is  designated,  corresponding  to 
the  Lieutenant-Governor  in  some  of  the  old  thirteen 
States,  to  preside  over  the  smaller  Senate  or  upper 
branch,  and  thus  maintain  the  equilibrium  of  State 
representation  in  that  body ;  an  ofiicer  ordinarily  with- 
out patronage,  but  in  case  of  the  removal  of  the 
President  from  office,  or  his  death,  resignation  or 
permanent  inability  to  discharge  its  duties,  succes- 
sor to  the  full  power  and  patronage  of  Chief  Execu- 
tive for  the  residue  of  the  term  of  four  years,  for 
which  they  both  were  chosen.^  Congress  may  by  laAv 
provide  for  the  vacancy  by  removal,  death,  resigna- 
tion, or  inability  of  both  President  and  Vice-Presi- 
dent,  and  it  has  done  so.*     The   double  executive 

1  Jeffersou,  upon  this  practical  coiistrnction,  fiuall}-  favored  the 
coiiKtittitional  tenure  as  tliat  of  eight  potential  years  with  an  interme- 
diate appeal  to  the  people. 

2  Const.,  Art.  II.,  §  1,  I.  Usage  limiting  the  tenure  to  eight  years 
still  prevails. 

^  Const.,  Art.  II.,  §  I.  Presidents  Harrison,  Taylor,  Lincoln,  and 
frarfiold  died  while  in  office,  and  each  was  succeeded  by  a  Vice-l'resi- 
dent  for  the  remainder  of  the  term.  At  least  three  Vice-Presidents 
have  died  in  sul)ordinate  station  while  a  President  survived.  The  case 
of  a  vacancy  in  l)oth  offices  has  never  yet  occurred. 

4  Const.,  Art.  II.,  §  1.  Congress  i)y  act  of  1886  (24  Stats.  1)  so 
changed  its  former  provision  as  to  make  the  office  devolve  upon  one 
of  the  late  Presidential  advisers  (or  "cal)inet")  constitutionally  eligi- 
ble and  previously  confirmed  by  tlic  Senate,  in  a  prescrilicd  order,  the 
Secretary  of  State  talking  precedence,  and  the  Secretary  of  the  Treas- 
ury following  next.     Such  person  holds  (agreeably  to  constitutional 


THE  FEDERAL  EXECUTIVE.  159 

candidacy  or  double  ticket  is  now  established  in 
American  favor;  but  in  1787  the  case  was  different; 
and  in  Federal  usage  this  nominee  for  the  second 
highest  office,  selected  carelessly  or  to  conciliate  some 
floating  or  adverse  element  in  the  pai'ty,  too  often 
while  Vice-President  attracts  counter  influences  to 
the  administration  in  power,  so  that  should  accident 
suddenly  promote  him,  the  national  policy  and  pat- 
ronage might  take  a  new  and  sinister  direction.  ^  A 
Vice-President  in  his  normal  and  inferior  station, 
with  no  favors  to  bestow  and  no  responsibility,  has 
little  but  his  casting  vote  in  the  Senate  to  give  him 
a  casual  importance.^ 

Our  constitutional  method  of  choosing  President 
and  Vice-President  is  not  felicitous.  Wisely  intend- 
ing that  the  Executive  should  derive  authority  from 
a  source  external  to  Congress,  yet  strongly  indisposed 
to  trust  the  free  choice  of  the  people,  the  framers  of 
1787  tried  the  device  of  an  electoral  college,  such  as 
Maryland's  constitution  already  employed  in  another 
connection. 3  No  complacency  could  have  been  greater 
than  that  with  which  the  convention  accepted  this 
solution  of  a  perplexing  problem.  But  political  sub- 
terfuge has  rarely  given  ultimate  satisfaction,  and  in 
this  instance  experience  has  utterly  belied  the  san- 


phrase)  until  the  disaliility  be  removed,  or  until  a  President  shall  bo 
chosen  at  the  regular  election. 

1  In  each  instance,  tlms  far,  except  tliat  of  Vice-President  Arthur's 
succession,  such  has  been  tlie  historical  result. 

"  Vice-President  Clinton's  casting  A'ote  (1811)  against  the  recharter 
of  the  United  States  bank,  and  that  of  Vice-President  Dallas  for  the 
Polk  tariff  of  1846,  furnish  rare  instances  where  the  incumbent  of  this 
second  office  has  made  his  influence  felt.  More  influence,  witli  the 
people  at  least,  might  accrue  if  a  Vice-President  asserted  more  strenu- 
ously iu  tliese  days  his  constitutional  functions  as  President  of  the 
Senate,  independent  as  the  law  makes  him  of  senatorial  favor. 

'^  Supra,  page  54.  Europe  had  pursued  some  such  method  in  the 
choice  of  the  Doge  at  Venice,  and  of  an  emperor  iu  Germany. 


160  CONSTITUTIONAL  STUDIES. 

guine  expectation  of  circumventing  the  common 
voters  and  Congress  together.  Each  State  should 
appoint  its  proportionate  number  of  electors  ^  in  such 
manner  as  its  legislature  might  determine;  and  first 
of  all  the  State  legislatures  chose  electors  directly. 
But  public  opinion  early  in  this  centuiy  asserted  its 
strength ;  this  choice  of  electors  reverted  to  the  people 
of  each  State,  who  usually  chose  by  districts,  until, 
for  the  better  concentration  of  State  influence  on  the 
elections,  the  choice  by  general  State  ticket  became 
substituted,  all  selection  of  modes  still  depending 
upon  an  arbitrary  legislative  discretion. ^  But  whether 
chosen  by  one  State  method  or  another,  the  State  elec- 
tors were  confessedly,  from  the  very  first,  agents  only 
of  those  who  choose  them  for  a  particular  purpose; 
and  while  the  recreancy  of  electors  to  their  pledges 
may  in  a  close  Presidential  canvass  thwart  on  any 
constitutional  occasion  the  will  of  the  voters,  the  in- 
evitable result  of  this  Federal  device  has  been  to 
make  each  State  electoral  college  in  effect  a  college 
of  proxies.  And  thus  has  evolved  that  choice  of 
President  and  Vice-President  by  the  common  voters 
which  the  constitution  meant  anxiously  to  avoid,  — 
a  choice  not  unfairly  apportioned  and  guarded,  but 
clumsily  arranged  for  popular  ballot,  tardily  regis- 
tered, so  to  speak,  and  liable  always  in  any  State  to 
tyrannous  prevention  or  mischievous  perfidy.^ 

The  original  scheme,  indeed,  proved  in  certain 
details  so  defective,  that  by  1803-1804  it  was  changed 
by    constitutional    amendment.      Electoral    colleges 

1  Equal  to  the  whole  number  of  its  Senators  and  Uoprescntatives  in 
Congress. 

-  See  146  U.  S.  1,  confirmiut^  the  clear  idea  that  a  State  legislature 
may,  at  any  time,  by  a  change  in  tlie  law,  choose  electors  as  formerly, 
or  require  the  people  to  choose  them  by  districts  instead  of  on  a  gen- 
eral ticket.  In  South  Carolina  a  legislature  cliose  Presidential  electors 
down  to  the  Civil  War. 

"  Const.,  Art.  II.,  §  1,  2. 


CHOICE   OF  EXECUTIVE.  161 

were  not  to  choose  President  and  Vice-President 
separately;  but  two  persons  were  to  be  voted  for  and 
certified  together  to  Congress,  and  the  person  prov- 
ing to  have  the  greatest  aggregate  number  of  votes, 
if  a  majority  upon  the  Congressional  count,  was  to 
be  President  of  the  United  States,  while  the  second 
highest  became  ipso  facto  Vice-President.  When 
parties  organized,  Jolui  Adams,  one  party  chief,  was 
chosen  President  in  1796,  while  Jefferson,  the  other 
party  chief,  jostled  as  Vice-President;  next  in  1800, 
when  the  opposition  ticket  led,  Jefferson  and  Burr, 
the  party  candidates  for  President  and  Vice-Presi- 
dent, proved  equal,  so  that  the  selection  between 
them  was  thrown  into  a  house  soon  to  expire  and 
controlled  by  their  common  enemies.  Anarchy  nearly 
resulted,  for  the  constitution  made  no  express  provi- 
sion for  the  contingency  of  no  choice  by  such  a 
house,  and  intrigue  delayed  action.  Since  the 
twelfth  amendment,  1  electors  still  meet  to  vote  in 
their  respective  States,  but  they  vote  in  distinct 
ballots  for  President  and  Vice-President;  and  in  case 
of  no  majority  choice  by  these  colleges,  whether 
of  President  or  Vice-President,  the  House  selects 
a  President  from  the  three  highest  candidates  for 
the  one  office,  while  the  Senate  chooses  a  Vice- 
President  from  the  two  highest  candidates  for  the 
other.  Voting  in  either  branch  is  conducted  after  a 
peculiar  arrangement  for  the  exigency,  and  in  any 
case  where  the  House  fails  thus  to  choose  a  President 
by  the  4th  of  March,  the  Vice-President  (sure  to  be 
selected)  shall  act  as  President.  The  opening  of 
State  certificate' .  and  the  electoral  count  take  place  in 

1  See  Amendment  XIT.  (1803-1804)  supersedinc;  Const.,  Art.  II., 
§1,3.  And  note  tlie  specific  details  of  this  amendment.  No  Senator, 
Representative,  or  officer  of  the  United  States  can  l)e  an  elector ;  and 
electors  mnst  not  vote  for  a  rresideut  and  Vice-President,  both  of  whom 
are  inhabitants  of  their  own  State.     Const.,  Art.  II.,  §  1. 


1G2  CONSTITUTIONAL  STUDIES. 

solemn  presence  of  both  branches  of  Congress  with 
the  President  of  the  Senate  in  the  chair.  ^  Choice  of 
chief  magistrate  by  the  legislature,  where  no  candi- 
date has  received  a  majority  vote  in  the  first  instance, 
is  a  remnant  of  earlier  practice,  and  a  compromise 
between  legislative  and  popular  selection.  States 
long  ago  discarded  that  principle  for  the  plurality 
choice  of  governor  at  the  polls  once  and  for  all ;  but 
the  Federal  constitution  still  remains  unchanged  in 
this  respect,  and  that,  too,  while  vesting  such  event- 
ual choice  in  a  retiring,  perhaps  a  defeated.  Congress, 
rather  than  a  newly  chosen  one.  Nor  does  even  this 
amended  scheme  concede  that  President  and  Vice- 
President  are  rightfully  chosen  by  the  people  under 
any  circumstances. 

State  discretion  prevails,  we  have  seen,  in  the 
method  of  choosing  the  electors  of  President  and 
Vice-President;  l)ut  Congress  may  determine  the 
time  of  choosing  electors  and  the  uniform  day  on 
which  they  shall  give  their  votes.  ^  Both  religious 
and  j)roperty  qualifications  are  ignored  for  President 
and  Vice-President,  a  great  advance  for  those  early 
times  when  the  constitution  was  framed;  but  no 
person  except  a  natural-born  citizen  of  the  United 
States^  is  eligible  to  either  office,  nor  one  who  lias 
not  attained  to  the  age  of  thirty-five,  and  been  four- 

1  Tlie  President  of  the  Senate  is  designated  to  open  the  certificates 
thus  publicly,  "  and  the  votes  shall  tlien  be  counted."  This  means,  as 
Federal  practice  has  constantly  maintained,  that  tiie  count  is  under  the 
direction  of  tiie  two  houses. 

'-  Const.,  Art.  II.,  §1,4.  Not  until  1845,  and  after  that  depressing 
experience  of  1 844,  when  the  Massachusetts  popular  vote  went  to  a 
AVhig  candidate  for  President  after  it  was  known  that  his  o])i)onent 
hiul  carried  the  country,  did  Congress  by  law  fix  a  uniform  day  for 
choosing  electors;  namely,  as  at  present,  the  Tuesday  foUowing  the 
first  Mouday  in  November. 

2  Or  a  citizen  of  the  United  States  when  the  constitution  was 
adopted.     Const.,  Art.  II.,  §  1,  5. 


EXECUTIVE  POWERS  AND  DUTIES.     163 

teen  years  a  resident  within  the  United  States.  ^  One 
holding  foreign  intercourse  with  the  world  on  behalf 
of  our  whole  people  should  be  swayed  by  no  native 
prepossessions  but  those  in  favor  of  the  United  States 
and  this  hemisphere. 

The  President's  salary  shall  be  paid  him  at  stated 
times,  and  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  was  elected ;  and  he 
shall  receive  no  other  emolument  from  the  United 
States,  or  any  of  them.^  Before  entering  on  the 
execution  of  his  office,  he  must  take  a  simple  oath  or 
affirmation  to  faithfully  execute  the  office  of  Presi- 
dent of  the  United  States,  and  to  the  best  of  his 
ability  preserve,  protect,  and  defend  the  constitu- 
tion ;3  whence  the  further  usage  of  imposing  cere- 
monies at  the  capital  with  an  inaugural  address  and 
procession,  none  of  which  are  essential  preliminaries 
to  his  exercise  of  official  power.* 

The  powers  and  duties  of  the  President,  as  defined 
by  the  constitution,  are  broad  and  ample  for  efficiency 
and  independence.  (1)  In  domestic  administration 
he  is  sole  commander-in-chief  of  the  Federal  army 
and  navy,  and  also  of  the  militia  of  the  several  States 
whenever  called  into  the  actual  service  of  the  United 
States,  —  a  responsibility  sufficiently  exclusive  for  ini- 
tiating, conducting,  or  preventing  war,  and  for  sup- 

1  Const.,  Art.  II.,  §  1,  5;  Amendment  XII.,  as  to  Vice-President. 
Diplomatic  service  abroad,  like  that  of  Mr.  Buchanan  shortly  hefore 
his  elevation  to  the  Presidency,  does  not  disqualify  for  want  of  a 
fourteen  years'  residence. 

^  Const.,  Art.  II.,  §  1,  7.  This  .salary,  fixed  originally  at  $25,000  per 
annum,  was  increased  to  $50,000  in  187.3,  under  President  Grant;  the 
increase  not  taking  effect,  however,  until  the  second  term  began  for 
which  he  was  re-elected. 

3  Const.,  Art.  II.,  §  1,  8,  9. 

*  Historical  precedent  lessens  the  ceremonials  of  a  second  term, 
and  dispenses  with  them  altogether  where  the  Vice-President  suc- 
ceeds to  a  legal  vacancy. 


164  CONSTITUTIONAL  STUDIES. 

pressing  rebellion,  though  it  must  rest  discretionally 
with  Congress  to  declare  formal  war,  and  to  vote  or 
withhold  men  and  supplies.  Purse  and  sword  are 
here  separated.  He  controls,  moreover,  his  civil 
suhordinates,  and,  except  in  cases  of  impeachment, 
he  has  unconstrained  power  to  grant  reprieves  and 
pardons  for  offenses  against  the  United  States.^ 

(2)  As  to  foreign  affairs,  a  concern  of  momentous 
national  dignity  and  importance,  and  often  involving 
secret  and  delicate  complications,  the  President  has 
properly  their  sole  conduct,  subject  only  to  an  implied 
right  of  Congress  to  press  its  peculiar  views  upon 
specific  points  of  foreign  policy,  b}-  joint  resolution, 
obstructive  legislation,  or  otherwise ;  '-^  so  that  co- 
operation is  desirable  in  all  great  matters  of  policy. 
It  is  for  the  President  to  receive  or  refuse  reception 
to  ambassadors  and  other  public  ministers  from 
abroad,^  fulfilling  all  diplomatic  relations  for  this 
government  under  the  established  intercourse  of 
nations,  which  is  essentially  executive.  He  com- 
mences at  pleasure  and  conducts  all  foreign  negotia- 
tions in  public  affairs,  and  makes  all  treaties.  But 
two-thirds  of  a  Senate  quorum  must  concur  and  give 
sanction  to  each  treaty,  since  otherwise  it  cannot 
take  effect ;  *  and,  furthermore,  any  treaty  requiring 
appropriations  or  new  legislation  to  carry  it  into 
effect  ought  justly  to  command  a  majority  support 
in  both  houses.'' 

1  Const.,  Art.  II,,  §  2,  1.  He  may  pardon  a  pcr-son  or  a  class  of 
persons,  ])efore  convit-tion  or  prosecution  .as  well  as  later,  with  no  con- 
straint except  that  rights  of  property  vested  by  the  prosecution  cannot 
be  disturlied  by  him. 

2  See  "Forum,"  March,  1S97,  for  the  author's  views  concerning 
such  discordance. 

3  Const.,  Art.  II.,  §  3.  All  this,  whicli  belonged  to  Congress  alone 
under  the  Confederacy,  was  felt  to  require  executive  management. 

4  Const.,  Art.  II.,  §  2. 

''  In  the  Jay  treaty  debates  of  1796  the  argument  was  pressed  that 


EXECUTIVE  POWERS  AND  DUTIES.     165 

(3)  In  the  appointment  of  all  subordinate  ofiQcers 
of  the  United  States  the  permissive  patronage  of  the 
President  is  almost  that  of  a  monarch.  Army  and 
navy  officers  he  posts  and  details  like  any  other  com- 
mander-in-chief, issuing  and  promulgating  through 
his  Secretaries  of  War  and  the  Navy  rules  and  orders 
which  he  is  competent  to  change.  As  for  the  vast 
and  growing  civil  list,  nothing  but  civil-service  rules, 
sanctioned  and  proclaimed  by  the  President  himself, 
can  safely  operate  to  curtail  his  constitutional  right, 
whether  immediately  or  by  indirection,  of  controlling 
the  whole  Federal  executive  patronage  from  highest 
to  lowest  subordinates  by  appointing  to  vacancies, 
and  as  appears  most  probable,  by  creating  them  at 
pleasure. 1  Congress  exercises  fundamentally  but  a 
limited  constraint  over  such  patronage.  An  act  of 
Congress  creates  the  office  and  fixes  its  term  and 
recompense;  periodical  appropriations  by  Congress 
are  essential  to  the  payment  of  such  recompense. 
But  neither  House  of  Congress  nor  both  houses  can 
assume  to  appoint  to  civil  or  military  office;  there 
remains  only  the  "advice  and  consent "  of  the  Senate 
essential  to  a  full  and  effectual  appointment  to  the 
higher  offices.  In  other  words,  the  President  nomi- 
nates to  the  Senate,  and  with  a  majority  consent  of 
that  body  appoints  ambassadors,  other  public  minis- 
ters and  consuls,  judges  of  the  Supreme  Court,  and 
all  other  officers  of  the  United  States  established  by 

a  treaty  once  ratified  by  the  Senate  becomes  obligatory  upon  the  House 
under  the  constitution,  and  binds  that  body  to  vote  appropriations  ac- 
cordingly. But  the  issue  remained  open  to  discussion ;  and  it  is  now 
clear  that  legislation  by  Congress  after  the  usual  course  may  repudiate 
any  treaty,  subject  to  the  President's  veto.  11  Wall.  616.  As  to  the 
international  effect  of  .such  a  breach,  that  is  another  question. 

1  The  civil-service  rules  of  the  present  day,  for  reform  of  former 
abuses  under  each  new  party  President,  are  aided  by  legislation  in 
Congress,  but  it  is  the  President  who  here,  as  in  the  army  and  navy 
service,  supplies  his  voluntary  enforcement.     But  see  page  170. 


166  CONSTITUTIONAL   STUDIES. 

law,  whose  appointments  are  not  otherwise  provided 
for  in  the  constitution.  ^  But  Congress  may  (as  they 
have  done  frequentljO  vest  by  Law  the  appointment 
of  such  inferior  officers  as  they  think  proper  in  the 
President  alone,  in  the  courts  of  Law,  or  in  the 
heads  of  departments.  The  President  has  power  to 
fill  all  vacancies  that  may  happen  during  the  recess 
of  the  Senate  by  granting  temporary  commissions.^ 
He  shall  commission  all  the  officers  of  the  United 
States.^ 

(4)  With  regard  to  Congress  and  the  regular 
course  of  legislation,  the  President  has  important 
functions,  chief  among  which  is  the  qualified  veto- 
power  already  described,*  —  a  power  so  salutary  in 
practice  as  to  have  induced  most  States  to  adopt  it, 
with  here  and  there  an  improvement  which  the 
Federal  instrument  might  well  adopt  in  return.'' 
The  President  is  to  inform  Congress  from  time  to 
time  of  the  state  of  the  Union,  and  recommend  such 
measures  as  he  shall  judge  necessary  and  expedient; 
whence  the  established  custom  of  a  formal  message 
at  the  opening  of  each  session,  which  under  the  tAvo 
earliest  Presidents  was  made  a  grand  ceremonial 
occasion.^     He  may  on  extraordinary  occasions  con- 

1  The  Vice-President,  like  the  President,  is  chosen  by  electors; 
members  of  either  branch  of  Congress  are  chosen  independently  of 
the  Executive;  and  each  liouse  controls  its  own  subordinates. 

2  Const.,  Art.  II.,  §  2. 

3  lb.,  §  3. 

*  Supra,  page  111. 

^  See  Part  111.,  post.  As  (1)  in  giving  the  President  a  stated  time 
after  final  adjournnicnt  in  wliich  to  approve  or  disapprove  the  latest 
bills;  (2)  in  allowing  him  to  veto  items  of  appropriation  bills,  instead 
of  having  to  pass  u]>on  the  bill  as  a  wliole. 

"  Under  the  administration  of  Wasliington  and  John  Adams,  the 
President  went  in  state  to  Congress  to  deliver  the  message  orally  be- 
fore the  assembled  houses ;  after  which  each  house  would  consider 
and  frame  a  formal  address  in  reply,  bearing  it  in  procession  to  the 
executive  mansion  with  corresponding  ceremony.     President  Jefferson 


EXECUTIVE  POWERS  AND  DUTIES.     167 

vene  both  houses  or  either  of  them ;  and  where  the 
two  houses  disagree  with  respect  to  the  time  of  ad- 
journment, he  may  adjourn  them  to  such  time  as  he 
shall  think  proper.  ^ 

(5)  Finally  the  President  shall  take  care  that  the 
laws  be  faithfully  executed  ;2  and  this  includes  not 
alone  the  enforcement  of  acts  of  Congress  according 
to  their  express  terms,  but  all  the  protection,  national 
or  international,  which  the  nature  of  our  constitu- 
tional government  implies.^  Nor  can  the  judiciary 
directly  intervene  by  mandamus,  injunction,  or  other- 
wise, to  control  the  Chief  Executive  in  the  exercise 
of  his  high  discretionary  functions,  —  not  even  upon 
the  allegation  that  he  is  enforcing  an  unconstitu- 
tional law.*  But  as  to  Federal  subordinates,  and  in 
acts  purely  ministerial,  where  nothing  is  left  to 
official  discretion,  it  has  been  ruled  otherwise.^ 
Ministerial  and  executive  duties  in  such  a  connection 
should  not  be  confounded ;  for  the  exercise  of  power 
to  enforce  the  laws  is  a  purely  executive  political 
duty,  which  no  remedy  short  of  impeachment  by 
Congress  can  rightfully  restrain.  Congress  cannot, 
however,  lawfully  increase  these  executive  duties 
by  delegating  to  the  President  its  own  legislative 
authority.^ 

The  Executive  Department  has  on  the  Avhole  been 
admirably  adjusted,  and  a  supreme  incumbent  of  high 

iu  1801  substituted  the  siinjder  aud  more  couveDieut  method  of  sending 
to  Congress  a  written  message,  to  which  no  formal  repl}'  was  expected, 
aud  such  has  since  continued  the  uniform  practice  of  government. 

1  Const.,  Art.  II.,  §  3. 

a  76. 

8  135  U.  S.  1. 

*  4  Wall.  47.5 ;  6  Wall.  57. 

s  1  Cranch,  137;  9  Wall.  298;  12  Pet.  524. 

**  143  U.  S.  619.  But  suspension  of  reci])rocity  by  the  President's 
authorized  proclamation  is  not  open  to  such  objection.     lb. 


168  CONSTITUTIONAL  STUDIES. 

character,  wisdom,  and  good  sense  cannot  fail  even  in 
times  of  peace  to  make  a  strong  and  abiding  impres- 
sion. The  very  fact  that  Congress  has  such  power 
for  enacting  momentous  laws  unwisely  renders  it  all 
the  more  desirable  that  the  President  should  have  a 
counteracting  influence  like  some  tribune  of  the 
people.  Another  strong  bulwark  against  the  tyranny 
of  either  Congress  or  the  President,  another  grand 
popular  reliance,  will  next  appear  in  the  Federal 
Judiciary,  and  most  of  all  in  the  Supreme  Court; 
and  the  tenure  of  Federal  judges,  which  alone  is 
fixed  for  life  or  good  beha^dor  by  the  constitution, 
places  them  in  the  civil  service  above  the  reach  of 
arbitrary  removal. 


IX. 


FEDERAL   CONSTITUTION   ANALYZED;   THE 
JUDICIARY. 

The  want  of  a  distinct  and  efficient  Federal  judi- 
ciary was  felt  to  be  so  vital  a  defect  of  the  old  Con- 
federacy that  the  creation  of  this  third  department  of 
government  under  the  Federal  scheme  of  1787  was 
readily  allowed.  Here  and  there  in  Articles  of  Con- 
federation we  find  a  permissive  establishment  of 
courts  for  piracies  or  captures  on  the  high  seas,  while 
Congress  itself  was  made  the  final  tribunal  for  deter- 
mining disputes  between  States  over  such  matters  as 
boundaries.^  Yet  in  all  this  there  was  found  no 
independent  Federal  establishment,  no  sanction  for 
Federal  judgments,  no  explicit  means  of  enforcing 
upon  States  or  their  inhabitants  a  decision  rendered. 
A  judiciary  aids  in  the  due  execution  of  powers 
given  to  a  government,  by  aj^plying  compulsion  to 
refractory  individuals ;  its  process  should  be  afforded 
to  all  invoking  the  public  standards  of  right  for  the 
adjustment  of  private  controversies ;  it  should  inter- 
pret laws,  treaties,  and  the  constitution  so  as  to  give 
a  uniform  sense  to  which  all  good  citizens  must 
submit. 

The  Federal  judiciary  established  by  our  consti- 
tution of  1787  was  made  accordingly  after  the 
Montesquieu  formula,  as  independent  and  distinct  as 
either   Congress   or  the   Executive.     One    declared 

»  Confed.,  Art.  IX. 


170  CONSTITUTIONAL  STUDIES. 

object  of  the  preamble  to  that  constitution  was  to 
"establish  justice;"  and  among  the  enumerated 
powers  of  Congress  "to  constitute  tribunals  inferior 
to  the  Supreme  Court."  ^  The  judiciary  article  itself 
declares  expressly  that  "the  judicial  j^ower  of  the 
United  States  shall  be  vested  in  one  Supreme  Court, 
and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish.  "^  Thus,  while 
Congress  may  model  and  remodel  the  lower  Federal 
tribunals  from  time  to  time,  as  may  be  deemed  expe- 
dient, the  Supreme  Court,  which  is  the  head  and 
crown  of  the  whole  system  and  the  Federal  tribunal 
of  last  appeal,  remains  as  perpetual  in  functions,  as 
intact  and  independent  (except  for  diminishing  or 
increasing  its  membership  when  vacancies  occur  ^  )  as 
Congress  itself  or  the  Executive.  No  law  can  abolish 
or  supersede  it;  no  Presidential  fiat  can  change  the 
incumbents.  So  complete  a  separation  of  a  judiciary 
from  the  other  two  departments  of  government  sup- 
plied to  our  Federal  system  what  few  States  possessed 
thus  early.  ^  In  tenure  and  method  of  appointment 
this  Federal  system  conformed  fairly  to  the  spirit  of 
1787,  but  unchanging  afterwards,  as  most  State 
systems  have  done,  it  anchors  fast  to  stable  conserv- 
atism, as  so  august  a  judiciary  should.  All  Federal 
judges  have  been  regularly  appointed  by  the  Presi- 
dent, subject  to  confirmation  by  the  Senate,  and  those 
of  the  Supreme  Court  cannot  constitutionally  be 
appointed  otherwise.^  Their  tenure  is  defined  unre- 
servedly as  "during  good  behavior;  "  and  their  com- 
pensation, which  they  are  entitled  to  receive  "at 
stated  times,"  shall  not  be  diminished  (though  Con- 

1  Art.  I.,  §  8. 

2  Art.  III.,  §  1. 

3  Vacancies  cannot  be  compelled  except  by  impeachment. 
*  Supra,  page  66. 

^  Supra,  page  165. 


THE  FEDERAL  JUDICIARY.  171 

gress  may  increase  it)  during  their  continuance  in 
office.^  A  Federal  judge  may  be  displaced  by  due 
process  of  impeachment,  but  the  Federal  constitution 
gives  no  power  to  remove  on  the  simple  address  or 
joint  resolution  of  Congress. ^ 

Since  Congress  may  change  the  inferior  Federal 
courts  at  will,  so  may  it  abolish,  and  thus  incidentally 
deprive  judges  of  their  offices.  A  premature  circuit 
court  establishment  was  thus  swept  away  in  1801 
when  Jefferson  became  President,  and  politics  con- 
quered politics.  Soon  after  the  Civil  War  circuit 
courts  with  special  judges  were  re-erected  by  Con- 
gress, and  in  1891  was  interposed  a  court  of  appeals 
to  rank  next  in  order  to  the  permanent  Supreme 
Court.  District  courts  in  each  State  were  always 
the  Federal  tribunals  of  first  resort.  Territorial 
courts,  erected  as  incidental  to  general  sovereignty 
over  national  territory,  are  not  within  the  strict  estal  >- 
lishment ;  and  judges  of  such  courts  ma}^  be  appointed 
for  definite  terms,  and  are  removable  by  the  Presi- 
dent.^ Nor  have  the  President's  military  provisional 
courts  any  permanent  civil  character.* 

Our  Federal  courts  have  kept  to  their  own  domain, 
performing  no  functions  except  those  of  a  judicial 
nature,  and  such  as  the  constitution  imposes  plainly 
upon  them.  They  refuse  to  arbitrate  political  issues 
or  to  participate  in  executive  business ;  they  decline 
to  sit  as  commissioners  or  determine  questions  sub- 
ject to  the  consideration  and  supervision  of  Congress 
or  of  some  executive  officer.^     The  Supreme  Court 

1  Const.,  Art.  III.,  §  1.  To  induce  but  not  compel  voluntary  retire- 
ment at  old  age  after  long  and  faithful  service,  acts  for  pensioning 
such  judges  have  been  pasised. 

2  Cf.  State  organic  law,  page  67. 

3  1  Pet.  .511  ;  141  U.  S.  174. 

4  9  Wall.  129;  13  How.  498. 

5  Cooley,  51 ;  13  How.  40;  19  Wall.  107,  6.55. 


172  CONSTITUTIONAL  STUDIES. 

would  not  entertain  appeals  from  the  Court  of  Claims 
until  Congress  gave  a  judicial  character  to  that 
tribunal  by  making  its  money  judgments  competent.^ 
Nor  does  the  organic  rule  of  States  like  Massachu- 
setts obtain  for  procuring  the  Supreme  Court's 
advice  as  a  basis  for  future  executive  or  legislative 
action;  but  its  opinions  are  rendered  only  in  the 
course  of  regular  litigation. ^ 

Not  to  be  too  technical  in  describing  here  the  judi- 
cial power  which  United  States  courts  exercise,  we 
may  observe  that  Federal  jurisdiction  arises  under 
three  different  conditions:  (1)  Because  of  the  sub- 
ject-matter; as  where  a  case,  whether  in  law  or 
equity,  civil  or  criminal,  arises  under  the  Federal 
constitution,  the  laws  or  the  treaties  of  the  United 
States  and  the  interpfetation  thereof  is  material  to 
the  issue ;  and  besides  in  all  cases  of  admiralty  and 
maritime  jurisdiction  arising  on  the  high  seas  or 
internal  navigable  waters,  or  in  interstate  commerce, 
subjects  vested  in  the  Federal  government.^  And 
here,  both  in  interpretation  and  enforcement,  the 
Federal  judiciary  is  supreme.  (2)  Because  of  the 
parties  litigating  whom  local  State  process  cannot 
fairly  conclude.  As  in  civil  cases,  regardless  of  the 
subject-matter,  between  citizens  of  different  States; 
so  that  in  consequence  our  Federal  decisions  compre- 
hend to-day  a  great  body  of  commercial  and  business 
law,    not  strictly   binding   as   precedents    otherwise 

1  Cf.  2  Wall.  651,  and  acts  of  1863. 

■•2  During  rresident  Wasliiugtoii's  administration,  and  while  the 
Supreme  Court  had  as  yet  very  little  judicial  business  to  transact,  an 
o])iuian  upon  tlie  legal  bearings  of  certain  matters  before  the  Calnnet 
was  refused  by  Chief  Justice  Jay  on  constitutional  grounds.  This, 
however,  has  not  prevented  judges  nor  even  the  Chief  Justice  from 
serving  in  some  special  capacity  for  a  public  emergency. 

8  Federal  jurisdiction  here  is  very  broad.     12  How.  443. 


THE  FEDERAL  JUDICIARY.  173 

upon  the  courts  of  individual  States,  but  rendered  so 
as  to  harmonize  as  far  as  possible  the  contemporaneous 
law  and  practice  of  the  States  where  ^Darties  litigant 
resided.  (3)  Because  of  subject-matter  and  parties 
combined ;  and  with  particular  reference  to  the  grav- 
ity of  State  or  international  disputes  which  might 
affect  the  peace  and  stability  of  the  whole  Union. 
To  this  head  belongs  the  exclusive  Federal  jurisdic- 
tion of  all  cases  which  affect  ambassadors,  other 
public  ministers  and  consuls ;  of  all  controversies  to 
which  the  United  States  shall  be  a  party ;  of  contro- 
versies between  two  or  more  States,^  between  a  State 
and  citizens  of  another  State, '■^  or  between  citizens  of 
different  States;  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States ;  and 
between  a  State  or  the  citizens  thereof  and  foreign 
States,  citizens  or  subjects.^ 

In  this  third  and  gravest  class,  or  rather  in  all 
cases  which  affect  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  State  shall  be  a 
party,  the  Supreme  Court  takes  original  and  uncon- 
trolled jurisdiction  under  the  constitution.  But  in 
all  such  other  cases  as  we  have  mentioned,  the 
Supreme  Court  exercises  an  appellate  jurisdiction 
merely,  both  as  to  law  and  fact;  and  this,  further- 
more, subject  to  such  exceptions  and  regulations  as 

1  As  in  some  question  of  boundaries  or  division.     11  Wall.  39. 

2  Au  early  decision  against  the  State  of  Georgia  I)y  the  Supreme 
Court  (2  Dall.  419),  produced  such  alarm  that  the  constitution  was 
amended  (1794-1798)  so  as  to  exclude  Federal  jurisdiction  of  any  suit 
in  law  or  equity  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State.  Amendment  XI.  But  a  State  may  expressly  waive 
such  defence.  108  U.  S.  436.  The  principle  that  a  sovereign  is  not 
amenable,  involuntarily,  to  the  suit  of  an  individual,  has  no  application 
to  a  suit  by  one  government  against  another  government.  143  U.  S. 
621. 

8  Const.,  Art.  III.,  §  2. 


174  CONSTITUTIONAL  STUDIES. 

Congress  shall  make.^  This  appellate  jurisdiction 
comprehends  the  highest  State  courts  as  well  as 
inferior  Federal  tribunals,  wherever  a  cause  of  juris- 
diction affirmatively  appears;  in  considering  State 
constitutions,  for  instance,  or  laws,  which  involve  a 
question  of  conflict  with  the  Federal  "  supreme  law 
of  the  land.  "2  But  the  Supreme  Court  imposes 
cautious  conditions  upon  State  supervision.  A  griev- 
ance must  be  affirmatively  shown.  The  appeal  must 
not  be  upon  an  agreed  statement,  but  as  the  result  of 
honest  antagonism ;  nor  will  it  be  entertained  on  any 
simple  issue  of  facts,  nor  where  the  State  tribunal 
might  have  decided  upon  some  other  ground,  but 
only  in  law  and  necessarily.^  Federal  courts  are 
indisposed  to  take  a  criminal  out  of  State  custody  by 
habeas  corjncs  ;  *  nor  can  the  mere  hardship,  impolicy, 
or  injustice  of  any  State  law  or  constitutional  pro- 
vision be  alleged  as  an  objection  to  its  validity. 
Aside  from  all  such  appellate  jurisdiction,  cases  are 
removed  from  State  to  Federal  inferior  courts  upon 
proper  jurisdiction  shown. ^ 

Europeans  often  wonder  that  Federal  and  State 
courts  can  work  together  in  upholding  so  complex  and 
conflicting  a  jurisdiction;  but,  as  English  observers 
admit,  the  system  of  Federal  supervision  works,  and 
now,  after  a  hundred  years  of  experience,  works 
smoothly.^  For  the  fundamental  principle  in  the 
United  States  is  that  the  supreme  law-making  power 
resides  in  the  people,  and  that  whatever  they  funda- 
mentally enact  binds   everywhere;    so  that,  whether 

1  Const.,  Art.  III.,  §  2.  The  Court  of  Appeals  (1891)  now  renders 
final  judgment  in  many  cases. 

2  Const.,  Art.  VI. 

3  143  U.  S.  339 ;  150  U.  S.  361  ;  152  U.  S.  355. 

4  1 56  U.  S.  272. 

5  Cooley,  129  ;  U.  S.  Rev.  Stats.  641,  and  acts  of  1887  and  1888. 
^  1  Bryce's  Commonwealth,  245. 


JURIES  AND  FEDERAL    CRIMES.       175 

in  State  or  Federal  application,  that  which  is  imcon- 
stitutional  transcends  the  permanently  expressed  will 
of  the  people.^  Delay  and  patient  deliberation  by 
the  highest  tribunal  over  what  has  been  fully  argued 
in  a  concrete  case,  not  arising  until  the  enactment  of 
disputed  validity  has  been  put  in  force,  must  go  far 
towards  preparing  the  public  mind  for  accepting  an 
adverse  judgment.  Public  legislation  submits  thus 
to  our  sober  second  thought,  and  the  Supreme  Court 
is  keeper  of  the  national  conscience,  the  guaranty  of 
minority  rights,  as  it  ought  to  be.  For,  as  Burke 
has  so  fitly  observed,  every  government  ought  in 
some  sort  to  make  a  balance  of  its  judicial  autliority, 
and  give  security  to  its  justice  against  its  power. ^ 

One  or  two  provisions  of  the  Federal  constitution 
concerning  judicial  procedure  may  be  noted  in  this 
connection.  The  ancient  trial  by  jury,  which  we 
have  seen  our  Revolutionary  States  proclaiming 
among  fundamental  rights,^  is  clearly  secured  in  the 
instrument  of  1787,  so  far  as  all  criminal  trials 
(except  in  impeachment)  are  concerned.  As  to  vici- 
nage, always  an  important  incident  of  this  sacred 
right,  lest  one  might  be  dragged  into  distant  neigh- 
borhoods for  arraignment,  it  is  further  provided  that 
such  trial  shall  be  held  in  the  State  where  the  crime 
shall  have  been  committed;  or  if  not  committed 
within  any  State,  at  such  place  as  Congress  may  by 
law  have  directed.*  But,  this  original  instrument 
ignoring  the  civil  trial  by  jurj',   one  of  the  earliest 

^  Even  the  Supreme  Court  of  the  United  States  lias  in  one  or  more 
ji^reat  instances  been  considered  as  overruled  by  the  people,  acting 
through  political  change,  and  imposing  their  "  higher  law." 

2  For  more  technical  details  of  Federal  judicial  power,  see  Cooley's 
Elements,  111-147  ;  Story,  §  1577,  latest  notes. 

3  Suprn,  page  32. 

*  Const.,  Art.  III.,  §  2,  3. 


176  CONSTITUTIONAL  STUDIES. 

amendments  preserved  that  right  in  all  common-law 
suits,  where  the  value  in  controversy  should  exceed 
twenty  dollars;  forbidding  to  United  States  courts 
the  re-examination  of  any  fact  tried  by  a  jury  other- 
wise than  according  to  the  rules  of  cynnnon  law.^ 
Other  amendments  insisted  upon  the  presentment  or 
indictment  of  a  grand  jury,  defined  the  vicinage  more 
closely  as  that  of  the  "State  and  district,"  wherein 
the  crime  shall  have  been  committed,  such  district 
having  been  previousl}'^  ascertained  by  law,  and  added 
important  safeguards  to  the  accused  which  will  be 
noticed  later. ^ 

Treason  against  the  United  States  is  most  liberally 
defined,  repudiating  the  odious  doctrines  of  construc- 
tive treason  once  prevalent  in  the  mother  country. 
Such  treason,  it  is  stated,  shall  consist  only  in  levy- 
ing war  against  the  United  States,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort.^  Equally 
liberal  as  to  the  proof  of  such  treason,  against  the 
mockery  of  English  State  trials  in  the  preceding 
century,  our  constitution  declares  that  conviction  of 
treason  must  be  on  the  testimony  of  at  least  two  wit- 
nesses to  the  same  overt  act,  or  on  confession  in  open 
court.  And  once  more  setting  an  example  in  pun- 
ishment for  the  offence,  which  England  followed  long 
after,  it  repudiates  the  old  common  law  which  cruelly 
visited  the  offence  upon  children  and  children's 
children.  Congress  may  declare  the  personal  pun- 
ishment, but  no  attainder  of  treason  shall  work  cor- 
ruption of  blood  or  forfeiture  beyond  the  life  of  the 

^  Amendment  VII. 

2  Amendments  V.,  VI. 

8  Const.,  Art.  III.,  §  3.  This  provision  is  taken  from  the  old  Statute  of 
Treasons,  2.'3  Edw.  III.,  which  durinc;  the  English  civil  war  was  plainly 
violated  in  Sidney's  trial.  See  4  Bl.  Com.  7.5.  A  mere  conspiracy 
by  force  is  held  not  sufficient,  without  an  actual  levying  of  war. 
4  Or.  75. 


JURIES  AND  FEDERAL    CRIMES.       Ill 

person  attainted.'  There  is  no  common-law  juris- 
diction of  crimes  in  the  United  States,  but  Federal 
crimes  must  be  defined  by  Congress,  subject  to  the 
further  written  law  of  the  Federal  constitution. ^ 

^  See  9  Wall.  339,  as  to  a  case  under  our  own  civil  war  of  18G1-65  ; 
also  English  statute  3  &  4  William  IV.,  c.  106.  With  hanging,  draw- 
ing, and  quartering,  the  old  English  punishment  of  a  traitor's  person 
was  barbarous  enough.  Hanging  has  been  tlie  appropriate  modern 
punishment;  but  under  Act  July  17,  1862,  Congress  gives  the  court 
discretion  to  sentence  by  fine  and  imprisonment  instead.  The  criminal 
offence  of  treason,  though  heinous  enough,  is  one  of  the  most  diilficult 
to  calmly  adjudicate  or  discern  in  any  body  politic.  Under  our  own 
composite  system  there  is  allegiance  due  to  the  United  States,  and  alle- 
giance due  to  the  State,  the  former  being  now  acknowledged  para- 
mount ;  and  one  might  render  himseK  liable  to  State  i)rosecution  for 
some  local  traitorous  offence  to  which  these  Federal  clauses  would  not 
per  se  apply. 

2  8  Pet.  591 ;  125  U.  S.  555. 


12 


X. 


FEDERAL  CONSTITUTION  ANALYZED;  INTER- 
STATE AND  TERRITORIAL  RELATIONS. 

Article  IV.  of  the  constitution  is  largely  devoted 
to  interstate  provisions  which  affect  private  rights 
and  the  States  themselves.  Much  of  it  is  an  expan- 
sion from  the  earlier  text  of  the  Articles  of  Con- 
federation. 

That  full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  other  State  is  admitted  to  be  an 
essential  rule  of  comity,  and  particularly  so  in  a 
co-ordinate  Union  like  ours.  The  constitutional 
phrase  is  almost  literally  borrowed  from  Articles  of 
Confederation,^  with  the  fitting  supplement  that 
Congress  may  by  general  laws  prescribe  the  man- 
ner and  effect  of  such  proof.^ 

The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several 
States.^  This,  too,  is  a  paraplirase  only  less  literal 
from  the  Articles  of  Confederation,  which  recognized 
such  a  comity  under  the  earlier  Union,  "  the  better 
to  secure  and  perpetuate  mutual  friendship  and  inter- 

1  Articles,  IV. 

2  Const.,  Art.  IV.,  §  1.  Inquiry  into  the  jurisdiction  of  another 
State  court  over  parties  and  subject-matter  is  not  precluded.  l.'JS 
U.  S.  439 ;  and  see  141  U.  S.  657. 

»  Const.,  Art.  IV.,  §  2.  See  also  Amendments  XIV.,  XV.,  enlarging 
the  constitutional  effect  of  tliis  clause. 


INTERSTATE  PROVISIONS.  179 

course  among  the  people,"  and  for  equal  "privileges 
of  trade  and  commerce."  A  sort  of  mutual  State 
citizenship,  with  reciprocal  privileges  and  immuni- 
ties, as  in  passing  through,  residing,  pursuing  busi- 
ness and  enjoying  liberty  and  property,  is  here  under 
the  Federal  system  of  1787  effectively  secured.  It 
is  further  declared  in  the  same  connection  —  once 
more  paraphrasing  Articles  of  Confederation  ^  —  that 
fugitives  from  justice,  charged  in  any  State  with 
treason,  felony,  or  other  crime,  shall  be  extradited 
on  executive  demand,  wherever  found,  to  be  removed 
to  the  State  having  jurisdiction  of  the  crime. ^  This 
and  another  clause,  now  happily  obsolete  since  the 
extinction  of  American  slavery,  ^  complete  the  comity 
provisions  which  affect  our  interstate  relations  more 
immediately  for  the  individual.* 

Next  as  concerns  States  immediately  in  their  public 
relations,  provision  is  first  made  for  extending  the 
original  Union  by  the  prospective  admission  of  new 
States.  Under  the  Confederacy  a  similar  extension 
had  been  authorized,  embracing  Canada,  with  pos- 
sibly other  British-American  colonies ;  ^  but  the  Con- 
tinental Congress  went  beyond  such  literal  authority 
when  title  to  the  vast  region  of  the  Mississippi  was 

1  Articles,  IV.  The  original  article  is  drawn  out  rather  loosely, 
and  so  as  to  avoid  controversy  under  a  confederated  sj'stem  which  left 
all  naturalization  to  coequal  States. 

2  Const.,  Art.  TV.,  §  2.  This  is  a  State  executive  duty  which  Fed- 
eral courts  cannot  compel.  24  How.  66.  Local  retaliation  generally 
corrects  any  miscliief. 

^  Const.,  Art.  IV.,  §  2,  .3,  known  historically  as  tlie  "fugitive  slave 
clause,"  though  purposely  avoiding  tlic  word  "  slave  ; "  and  requiring 
State  extradition  of  persons  "held  to  service  or  lahor  in  one  State" 
and  escaping  to  another.  That  clause  was  in  expression  horrowed 
from  the  early  New  England  Articles  of  Confederation,  page  73. 

*  See  for  technical  details,  Cooley,  195-201. 

^  Articles,  XI. 


180  CONSTITUTIONAL  STUDIES. 

clearly  quitclaimed  by  leading  States  to  the  Union. ^ 
Under  our  present  constitution  the  discretion  to 
admit  new  States  is  lodged  unreservedly  in  Congress 
like  ordinary  legislation;  and  ever  since  the  Louisiana 
purchase  of  1803,  that  discretion,  which  had  clearly 
comprised  the  original  territorial  area  of  the  United 
States  westward  to  the  Mississippi,  has  been  repeat- 
edly extended  in  practice  so  as  to  comprehend  with- 
out constitutional  change  whatever  adjacent  foreign 
territory  on  this  continent  between  the  two  oceans 
may  be  acquired  at  any  time  by  war  or  peaceful 
pui'chase.  But  both  as  to  policy  and  constitutional 
right,  so  vast  and  unreserved  a  power  to  Congress, 
or  to  the  treaty-making  department,  v/ithout  limit  of 
popular  referendum,  constitutional  amendment,  or 
unusual  constraint  whatever,  to  change  the  whole 
scope  and  character  of  this  Union  by  the  incorpora- 
tion of  foreign  soil  and  foreign  populations  or  races, 
is  worth  challenging  on  every  new  occasion ;  for  it  is 
a  power  pregnant  with  the  gravest  dangers,  such  as 
debauched  and  finally  destroyed  the  Roman  empire. 
This  confederated  system  of  ours  recognizes  no  per- 
manent political  condition  anywhere  but  that  of  co- 
equal States.  And  as  for  admitting  new  States 
formed  within  existing  and  recognized  domestic  ter- 
ritory, the  unconstrained  power  of  Congress  which 
the  framers  of  1787  intended  to  bestow  is  ample 
enousrh  to  be  dreaded. ^  For  no  State  once  admitted 
to   the   Union   can   ever  be   deprived   of   its   equal 


1  Supra,  page  85.  In  the  Ordiiiauce  of  1787,  whiyli  our  first  Con- 
gress of  1789  ratified,  it  had  been  agreed  that  new  States  not  exceed- 
ing five  might  be  formed  from  the  northwest  territory  and  received 
into  the  Union.  Articles  of  Confederation  were  in  tlieir  final  form 
assented  to  by  all  the  States  but  Maryland,  before  this  territorial  ces- 
sion was  made  at  all ;  hence  the  insuflBcient  authority  which  those 
Articles  had  recited. 

2  Const.,  Art.  V. 


TERRITORIES  AND  NEW  STATES.      181 

suffrage  in  the  Senate  without  its  consent.^  New 
States,  therefore,  may  be  constitutionally  admitted, 
by  Congress  into  this  Union ;  but  no  new  State  shall 
be  formed  or  erected  within  the  jurisdiction  of  any 
other  State,  nor  any  State  be  formed  by  the  junction 
of  two  or  more  States  or  parts  of  States,  without  the 
consent  of  the  legislatures  of  the  States  as  well  as  of 
Congress  itself.^ 

Further  power  is  given  Congress  in  this  section 
"  to  dispose  of  and  make  all  needful  rules  and  regu- 
lations respecting  the  territory  or  other  property  of 
the  United  States.  "^  By  1787  a  vast  domain  west 
of  the  Appalachian  range  to  the  Mississippi  became 
the  undisputed  "property"  of  the  whole  Union,  not 
under  the  Articles  of  Confederation,  but  rather  as  a 
virtual  concession  gained  when  ratifying  them  from 
the  older  States.  Those  sovereign  cessions  from 
Virginia  and  other  States  were  not  without  special 
conditions  regarding  the  future  status  of  American 
slavery,  which  Congress  later  recognized.^  Terri- 
tories most  ample,  and  stretching  from  ocean  to  ocean, 
have  since  come  into  the  Union,  as  the  sole  fruit  of 
national  purchase  and  conquest;  yet  territorial  the- 
ories have  been  occasionally  broached  since  1787,  as 
though  the  Union  were  incompetent  to  regulate  freely 
its  own  soil  for  settlement  and  republican  education.^ 

1  Const.,  Art.  IV.,  §  3.  The  consent  of  Congress  need  not  be  di- 
rectly given  if  fairly  inferable  from  its  course  of  action.  11  Wall.  39. 
As  might  well  be  surmised,  no  States  have  ever  been  consolidated  by 
junction  on  such  terms  as  aliove;  while  in  repeated  instances  —  e.g., 
Maine  from  Ma.ssachusetts  and  West  Virginia  from  Virginia  —  old 
States  have  been  constitutionally  subdivided  by  triple  consent. 

^  Const.,  Art.  IV.,  §  3. 

3  "  Nothing  in  this  constitution  shall  be  so  construed  as  to  prejudice 
any  claims  of  the  United  States  or  of  any  particular  State."  lb. 
This  mollifying  clause  appears  to  have  been  inserted  with  express  ref- 
erence to  territorial  jurisdiction. 

*  "  Squatter  sovereignty  "  and  other  such  ingenious  doctrines  served. 


182  CONSTITUTIONAL  STUDIES. 

Over  this  general  subject,  however,  as  also  in  the 
admission  of  new  States,  since  territories  ripen  natu- 
rally into  statehood,  Congress  exercises  a  plenary 
constitutional  discretion,  which  ought  to  respect  the 
general  welfare  and  v/ishes ;  ^  for  the  constitution  was 
made  for  States  and  not  for  territories,  and  the  terri- 
torial condition  is  in  a  proper  sense  only  temporary 
and  preparatory. 

Finally,  it  is  imposed  on  the  United  States  as  a 
duty  (1)  to  guaranty  to  every  State  a  republican 
government;  (2)  to  protect  it  against  invasion;  and 
(3)  to  protect  it  upon  due  application  against  domestic 
violence. 2  The  first  or  guaranty  clause,  whose  per- 
version in  meaning  was  attempted  during  the  recon- 
struction era  which  followed  close  upon  our  civil 
war,  presupposes  a  State  government  of  a  republican 
form  already  in  existence;  and  while  permitting 
States  to  change  their  local  organic  law,  imposes 
only  the  restriction  that  republican  shall  never  be 

however,  a  temporary  political  purpose,  which  vanished  with  the  final 
disappearance  of  slavery. 

1  The  plenary  power  of  Congress  over  the  territories  combines  that 
of  a  local  proprietor  of  land  and  of  a  regulator  of  local  government. 
Doubtless  tliat  power  is  subject  by  implication  to  all  fundamental  lim- 
itations in  favor  of  individual  rights  which  are  now  formulated  in  the 
Federal  constitution  and  its  amendments.  136  U.  S.  1.  Methods  of 
territorial  government  for  tlie  Union  date  back  to  1784  and  to  the 
Continental  Congres.s,  which  laid  broadly  the  foundations  of  the  pres- 
ent public  land  system,  clearly  recognizing  at  once  the  solemn  trust  of 
nurturing  and  educating  the  new  settlements  into  loyal,  self-governing 
and  orderly  States.  Two  forms  of  territorial  government  have  been 
from  time  to  time  established  l)y  Congress  as  circumstances  required : 
(1)  an  executive  Federal  government,  somewhat  arbitrary,  under  the 
immediate  appointment  of  Tresident  and  Senate;  (2)  a  Federal  gov- 
ernment partly  po])ular,  which  recognizes  a  territorial  legislature  and 
local  representation;  and  this  is  the  usual  kind.  Congress  may  and 
usually  does  imjiose  certain  fundamental  conditions  upon  the  admission 
of  each  new  State. 

2  Const.,  Art.  IV.,  §  4. 


FEDERAL  GUARANTY  AND  PROTECTION.  183 

exchanged  for  anti-republican  constitutions.^  By 
republican  government  we  should  understand  a  gov- 
ernment whose  representatives  are  chosen  by  the 
people ;  and  while  no  czar  or  hierarch  would  be  thus 
allowable,  legitimate  republican  government  may 
take  a  wide  variety  of  forms.  Moreover,  a  State 
republican  government  once  established  may  demand 
the  Federal  assistance  because  of  the  hostile  action 
of  some  invading  foreign  power,  or  b}^  reason  of  some 
Revolutionary  domestic  uprising  against  the  consti- 
tuted authority;  and  in  either  case,  the  intervention 
of  the  Federal  government  to  protect  the  people  in 
their  existing  government  would  be  proper.'-^  In 
other  extreme  instances,  as  where  despotism  is  in- 
stalled and  organized  under  forms  of  law,^  or  there 
has  never  been  a  State  government,  or  that  which 
once  existed  has  been  displaced  in  the  course  of 
rebellion  and  attempted  secession  and  lapses  into 
domestic  disorder,  some  just  enabling  action  by  the 
United  States  may  be  advisable  or  even  necessary. 
As  for  the  protection  of  an  existing  State  against 
invasion,  such  is  the  natural  incident  of  Federal  con- 
stitutional government  for  occasions  of  emergency, 
as  was  State  self-protection  under  the  previous  Con- 
federation. Protection,  however,  against  domestic 
violence  is  so  delicate  an  exercise  of  Federal  power, 
and  so  liable  to  abuse  and  sensitive  collision,  that  it 
is  expressly  guarded  by  requiring  the  State  Legisla- 
ture, or  (if  it  cannot  be  convened)  the  State  Execu- 
tive, to  invoke  such  protection.  This  expression, 
however,  does  not  cover  the  whole  ground,  for  by 
the  present  age   the  network  of  interstate  commer- 

1  Federalist,  Nos.  21  and  43. 

••^  7  How.  1 ;    7  Wall.  700.    The  Dorr  Rebellion  in  Rhode  Island, 
1841-42,  furui.shed  an  instance  in  point. 

3  As  in  the  Mormon  territorial  outbreak  of  1857. 


184  CONSTITUTIONAL  STUDIES. 

cial  and  other  common  interests  has  overspread  the 
area  of  the  United  States  so  completely  that  where 
State  authorities  are  themselves  remiss  in  putting 
down  local  disorder  or  in  calling  for  Federal  aid,  the 
President,  supported  by  Congress,  is  justified  in 
marching  troops  to  the  scene  and  intervening  for 
the  welfare  of  the  whole  people  and  the  public 
concerns.  1 

1  As  in  the  Illinois  disturbances  of  1894.  By  virtue  of  interstate 
commerce  and  carrying  the  mails,  "  the  government  of  the  United 
States  has  jurisdiction  over  every  foot  of  soil  witliin  its  territory  and 
acts  directly  upon  each  citizen."     Debs,  Re,  158  U.  S.  564. 


XI. 


FEDERAL  CONSTITUTION  ANALYZED;  ADOPTION, 
POWER  TO  AMEND,  AND  FEDERAL  SU- 
PREMACY. 

Consonant  to  the  spirit  of  that  earlier  age,  both 
adoption  and  future  amendment  of  this  Federal  con- 
stitution were  deemed  sufficiently  sanctioned  by  repre- 
sentatives of  the  people  without  a  direct  reference  to 
the  polls.  This,  indeed,  is  the  essence  of  republican 
government  as  distinguished  from  democracy,  whose 
fiat  is  a  plebiscitum.^  Articles  of  Confederation  had 
been  the  product  of  a  general  Congress  submitted 
to  the  thirteen  State  legislatures  for  confirmation. 
The  constitution  of  1787,  on  the  other  hand,  framed 
by  the  Philadelphia  convention,  went  to  conventions 
of  the  different  States  for  final  sanction  after  a  per- 
missive reference  by  the  Continental  Congress;  a 
closer  reference  than  before  to  the  will  of  the  people 
(since  conventions  are  of  spontaneous  popular  origin), 
yet  an  incomplete  one.  The  prevalent  disregard  of 
immediate  popular  expression  was  more  plainly  mani- 
fest in  the  provisions  made  for  future  constitutional 
amendment,  which  left  the  convention  or  legislative 
mode  a  mere  matter  of  option  by  Congress,  still 
ignoring  all  direct  vote  by  the  people.  No  inadver- 
tence gave  sucli  shape  to  these  provisions  as  to 
make  amendment  difficult;  for  that  Philadelphia 
convention  would  never  have   met,   the  scheme   of 

1  Supra,  page  47,  for  earlier  State  practice. 


186  CONSTITUTIONAL  STUDIES. 

Confederation  could  not  have  been  superseded  at  all 
at  this  period,  had  one  specific  amendment  passed  all 
thirteen  legislatures  instead  of  twelve,  —  had  organic 
change  been  possible  without  a  universal  State  assent. 
Even  now,  by  a  sort  of  revolutionary  process,  this 
new  constitution  of  1787  was  to  be  sufficiently  estab- 
lished by  the  ratification  of  nine  out  of  thirteen 
States,^  and  any  still  reluctant  might  remain  outside. 
Two  specific  modes  of  future  amendment  we  find 
set  forth :  one,  the  simpler  and  the  only  one  in  fact 
which  a  century's  experience  has  applied,  is  by  spe- 
cific amendment  proposed  to  the  several  States  by 
two-thirds  of  both  Houses  of  Congress;  the  other,  by 
a  convention  which  Congress  shall  call  on  the  api^li- 
cation  of  the  legislatures  of  two-thirds  of  the  States. 
In  either  case  Congress  takes  the  direct  initiative, 
though  in  the  latter  case  its  duty  becomes  formal 
and  imj)erative,  and  a  mere  majority  may  suffice. 
In  neither  instance,  however,  is  the  President's 
approval  needed,  as  though  to  legislation,  but  Con- 
gress performs  a  special  function  which  the  constitu- 
tion executes. 2  For  calling  a  new  convention  the 
remote  initiative  vests  in  scattered  but  co-oj)erating 
State  legislatures;  but  as  those  several  legislatures 
must  apply  to  Congress,  no  spontaneous  Federal  con- 
vention like  that  of  1787  is  ever  again  to  be  legally 
called,  seeking  Federal  approval  afterwards.  For 
the  ratification  of  a  new  Federal  constitution  or  of 
prospective  amendments,  three-fourths  of  all  the 
States  must  give  assent  either  by  local  legislature  or 
convention,  as  Congress  ma}^  propose  in  advance.^ 
If  such  a  thing  be  organically  possible  as  an  irrepeal- 

1  Const.,  Art.  VII.     See  page  95. 

2  3  Dall.  378. 

8  Const.,  Art.  V.  Congress  has  tlius  far  chosen  to  propose  ratifi- 
catidii  hy  State  logislature.  The  mode  is  not  optional  with  States,  nor 
is  reference  made  at  all  to  a  direct  popular  expression. 


METHODS   OF  AMENDMENT.  187 

able  ordinance  of  man,  which  we  may  well  doubt,  this 
constitution  has  in  one  important  particular  ruled  out 
all  change.^ 

Students  of  our  American  system  have  criticised 
that  rigid  Federal  conservatism  which  compelled  so 
large  a  fraction  as  three-fourths  of  all  the  States  to 
give  any  proposed  change  validity.  Yet  there  are 
sound  reasons  for  making  radical  Federal  amend- 
ment more  difficult  than  in  the  less  spacious  area  of 
individual  States.  In  fact,  a  popular  impulse  that 
moves  two-thirds  or  even  a  large  majority  not  sec- 
tional of  the  States  to  ratify  easily  widens  its  projiel- 
ling  force  to  the  greater  fraction;  and  so  was  it  with 
the  adoption  of  the  instrument  of  1787  itself.  The 
greater  difficulty  is  rather  in  initiating  change  at  all, 
in  overcoming  the  first  inertia,  in  getting  Congress 
by  a  two-thirds  vote  to  proj)ose  something  remedial, 
where,  most  of  all,  one  or  the  other  branch  must  be 
shorn  of  privileges  should  the  change  take  effect.  A 
hundred  years  and  more  have  produced  only  fifteen 
articles  of  amendment,  of  which  the  first  ten,  pro- 
posed by  the  very  first  Congress,  really  rounded  out 
the  original  instrument  under  a  tacit  compromise  with 
ratifying  States,  while  the  last  three  were  the  exac- 
tion of  a  bloody  civil  strife.  The  two  intermediate 
amendments,  affecting  Congressional  privilege  in  no 
respect,  aimed  to  rectify  minor  constitutional  defects 
which  Federal  procedure  had  disclosed.  When 
public  opinion  becomes  well  aroused,  the  gates  of 
constitutional  amendment  fly  wide  open  and  entrance 
gives  easy  exit ;  but  it  is  the  concrete  that  arouses, 
and  the  public  mind,  dormant  through  generations 
of  prophetic  foreboding,  awakes  only  when  sufferings 
are  actual. 

1  Const.,  Art.  V.,  close  of  article;  (1)  as  to  slavo-trado  privileges, 
obsolete  since  1808;  (2)  as  permanently  guaranteeing  the  equality  of 
States  in  the  Senate. 


188  CONSTITUTIONAL  STUDIES. 

The  sixth  article  contains  three  clauses.  The  first 
proclaims  all  debts  and  engagements  of  the  old 
Confederation  equally  binding  upon  the  new  Union. ^ 
The  second,  or  Federal  supremacy  clause,  constantly 
invoked  by  the  Federal  judiciary  when  State  consti- 
tutions or  enactments  violate  the  grand  ordinance  of 
Union,  declares  explicitly  that  this  Federal  constitu- 
tion, and  all  pursuant  laws  and  treaties  of  the  United 
States,  "shall  be  the  supreme  law  of  the  land;" 
enjoining  further  their  paramount  obligation  not  upon 
the  United  States  judiciary  alone,  by  implication, 
but  upon  the  judges  in  every  State,  whatever  the 
constitution  and  laws  of  any  State  may  recite  to  the 
contrary.^  By  "supreme  law  of  the  land,"  or  para- 
mount comprehensive  law  essential  to  the  whole 
Union,  is  meant  that  which  Congress  and  all  other 
departments  of  government  must  respect  at  all  times, 
and  to  which  States  and  their  own  departments  when- 
ever in  conflict  must  yield  subordination.  The 
Federal  constitution  measures  therefore  the  validity 
of  laws  and  treaties  of  the  United  States,  which  to 
be  valid  must  conform  to  its  own  ordinance ;  and  as 
between  these,  a  statute  or  a  treaty  is  equally  obliga- 
tory in  a  national  and  domestic  sense,  so  that  the  one 
may  supersede  the  other  if  later  in  point  of  time.^ 

The  third  clause  of  this  article,  consistently  with 
such  a  doctrine  of  Federal  supremacy,  binds  all  high 
officers,  executive  and  judicial,  as  well  as  all  mem- 
bers of  the  Legislature,  whether  of  the  United  States 
or  of  the  several  States,    to  swear  to  support  this 

1  Const.,  Art.  VI.,  §  1.  Since  all  thirteen  States  entered  finally  the 
new  Union,  this  ])lcdgc  of  public  faith  well  fortified  the  new  national 
policy  of  sustainint:;  sacredly  the  pnldic  credit. 

2  Const.,  Art.  VI.,  §  2. 

8  11  Wall.  G16;  143  U.  S.  .570.  Of  course  in  an  international  sense 
the  repeal  of  a  treaty  may  involve  a  liveacli  of  puhlic  faitli  with  inter- 
national consequences,  as  concerns  the  otlier  contracting  power. 


FEDERAL    OATH  AND   TESTS.  189 

Federal  constitution,  —  the  simple  and  only  oatli  or 
affirmation  that  the  United  States  of  America  impera- 
tively asks  from  any  one.  And  tinall}',  in  a  most 
liberal  spirit  for  that  eighteenth  century,  when  State 
official  tests  were  commonly  exacting,  ^  it  is  announced 
that  no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the 
United  States.  ^ 

1  Supra,  page  43.  ^  Const.,  Art.  VI.,  §  3. 


XII. 

FEDERAL    CONSTITUTION    ANALYZED; 
SUBSEQUENT   AMENDMENTS. 

The  amendments  to  the  original  Federal  constitu- 
tion of  1787  subsequently  adopted  to  this  date  are 
fifteen  in  number.  Of  these  the  first  ten  collectively 
are  in  the  nature  of  a  sux^plemental  declaration  of 
rights,  embracing  a  careful  selection  by  the  First 
Congress  from  an  immense  mass  of  proposed  amend- 
ments, which  doubtful  States,  beginning  with  Massa- 
chusetts, had  framed  and  submitted  when  ratifying 
the  original  instrument.  Ratifjdng  unconditionally 
for  the  sake  of  harmony  what  appeared  an  imperfect 
constitution  in  its  original  draft,  these  States  in  con- 
vention gave  their  needed  consent  upon  an  under- 
standing that  the  new  Federal  government  would  at 
once  initiate  amendments  of  this  general  character 
to  broaden  and  strengthen  the  safeguards  of  liberty ; 
nor  in  this  did  the  new  government  disappoint  them.  ^ 
Many  of  these  "bill  of  rights  "  provisions  were  trans- 
ferred from  State  constitutions  already  established. ^ 
The  eleventh  amendment  ^  stifled  suits  in  the  Supreme 

1  Amendments  I.-X.,  all  submitted  together  to  the  State  legisla- 
tures in  1789,  and  declared  ado]ited  in  1791.  Congress  proposed  at  the 
same  time  two  other  ameudments  which  failed  of  State  adoption.  One 
of  them  fixed  a  permanent  rule  for  apportioning  tlie  Hon.se  of  Repre- 
sentatives; the  other  forl)ade  that  a  law  varying  the  compensation  of 
members  of  Congress  should  take  effect  until  after  a  new  election  of 
representatives. 

2  Cf.  Part  I.,  c.  3. 

"*  Proposed  in  1794  and  declared  adopted  in  1798. 


SUBSEQUENT  AMENDMENTS.  191 

Court  of  the  United  States  obnoxious  to  State  sov- 
ereignty, and  prevented  such  litigation  for  the  future. 
The  twelfth  amendment  ^  corrected  defects  in  the 
machinery  of  Presidential  elections  made  patent  in 
the  bitter  party  contest  of  1800,  but  did  not  radically 
change  the  plan.  The  thirteenth,  fourteenth,  and 
fifteenth  amendments,  completing  the  list  at  the 
present  time,  were  the  cumulative  result  of  that 
fratricidal  conflict  whence  emerged  a  Union  purged  of 
human  slavery  and  readjusted  to  the  new  social 
condition  of  equal  civil  rights,  regardless  of  race  or 
complexion.  2 

Congress  has  at  different  epochs  entertained  a  vast 
variety  of  amendment  propositions,  many  of  them 
crude  and  transient,  which  have  failed  of  a  two- 
thirds  passage  in  both  houses  and  public  insistence. 
One  memorable  one  went  to  the  States  in  1861  for 
adoption,  but  in  the  tremendous  drift  of  events 
became  overwhelmed;  pledging  the  Union  never  to 
interfere  with  slavery  as  locally  existing  in  a  State, 
it  preceded  by  only  four  years  that  thirteenth  amend- 
ment whose  actual  scope  was  diametrically  opposite, 
for  public  opinion  in  those  four  years  underwent  a 
revolution.  No  co-operative  State  application  to  call 
a  convention  such  as  the  constitution  recognized  has 
ever  yet  demanded  the  action  of  Congress ;  nor  has 
Congress  ever  required  an  amendment  to  be  ratified 
by  State  conventions  instead  of  the  Legislature. 

I.  "  Bill  of  Rights  "  was  the  compromise  addition 
purposed  to  the  original  instrument  of  1787.  Several 
important  clauses  of   the  original   constitution  had 

1  Proposed  in  1803  and  declared  adopted  in  1804. 

'"'  The  thirteenth  amendment  M-as  proposed  and  adopted  in  1865. 
The  fourteenth  was  proposed  in  18C6  and  adopted  in  1868.  The  fif- 
teenth was  proposed  in  1889  and  adopted  in  1870. 


192  CONSTITUTIONAL   STUDIES. 

actually  that  character,  ^  but  no  parade  was  made  of 
them,  as  though  of  blazing  formulas  our  framers 
were  weary.  Of  the  first  eight  compromise  amend- 
ments, which  touch  the  individual  and  civil  rights, 
it  should  be  said  that  in  general  they  apply  exclu- 
sively to  Federal  jurisdiction  and  procedure; 2  States 
themselves  cherishing  similar  maxims  for  appli- 
cation to  issues  more  peculiarly  their  own.  As  to 
the  first  amendment  (1)  Congress  must  make  no 
establishment  of  religion  nor  prohibit  its  free  exer- 
cise, —  a  prohibition  which  is  not  transcended  by 
breaking  clown  some  despotic  hierarchy  or  polygamy 
pursued  under  the  guise  of  religion  in  the  Territories,^ 
but  inculcates  non-interference  in  private  preferences 
of  religious  worship.  (2)  Congress  must  not  abridge 
by  law  the  freedom  of  speech  or  of  the  press,  —  a 
maxim  already  pronounced  in  the  States,  where  its 
application  must  mostly  be  confined.^  (3)  Congress 
must  not  abridge  by  law  the  right  of  the  people 
peaceably  to  assemble  and  to  petition  the  government 
for  a  redress  of  grievances.^ 

II.  A  well-regulated  militia  being  necessary  to 
the  security  of  a  free  State,  the  right  of  the  people 
to  keep  and  bear  arms  shall  not  be  infringed.^ 

1  E.  (J.,  the  humane  limit  to  penalties  for  treason,  the  habeas  corpus, 
no  title  of  nol)ility,  no  religious  test  for  office,  and  jury  trial  in  criminal 
cases. 

2  147  U.  S.  490,  as  to  fifth  amendment;  124  U.  S.  200;  Story, 
§  1782,  notes. 

3  136  U.  S.  1. 

*  The  "sedition  act"  of  Congress  in  1798  appears  to  have  been 
founded  upon  a  misconception  of  Federal  jurisdiction  in  sucii  matters 
as  well  as  of  good  policy.  But  anti-lottery  acts  are  no  such  abridg- 
ment of  freedom,  for  freedom  is  not  immoral  license. 

^  Tliis  does  not  sanction  a  tlireatening  demonstration  of  violence 
at  the  capital.  To  petition  is  not  to  demand,  but  to  ask  with  loyal 
deference.  Tl)is,  too,  we  have  seen,  was  a  State  maxim.  Supra, 
page  3.5. 

8  For  State  maxims  corresponding,  see  page  33.    In  the  English 


FIRST   TEN  AMENDMENTS.  193 

III.  Soldiers  shall  not  be  quartered  in  time  of 
peace  in  any  house  without  the  owner's  consent,  nor 
in  time  of  war  except  as  the  law  may  prescribe,  — ■ 
an  abuse  of  the  colonial  age  while  revolution  was 
impending.  A  common  incident  of  war  while  bel- 
ligerent or  rebellious  soil  is  occupied,  it  should  not 
be  arbitrary  or  injurious  to  peaceful  and  loyal 
citizens. 

IV.  The  people  shall  be  secure  against  unreason- 
able searches  and  seizures,  and  no  warrants  shall  issue 
but  upon  probable  cause,  supported  by  oath  or  affir- 
mation and  a  particular  description. ^ 

V.-VIII.  The  next  four  amendments  chiefly  con- 
cern procedure  in  the  Federal  courts,  extending  safe- 
guards such  as  States  had  expressly  recognized  for 
protection  of  the  accused.  Presentment  or  indict- 
ment must  be  made  by  a  grand  jury  for  a  capikil  or 
otherwise  infamous  crime,  as  an  added  prerequisite 
to  the  trial  of  crimes  by  a  jury ;  ^  though  to  cases 
arising  in  the  land  or  naval  forces,  court-martial 
regularly  applies,  as  well  as  to  State  militia  while  in 
active  Federal  service.^  No  person  shall  be  twice 
put  in  jeopardy  of  life  and  limb  for  the  same  offence ; 
nor  shall  any  one  in  any  criminal  case  be  compelled 
to  be  a  witness  against  himself.*     The  accused  in  all 

Bill  of  Rights  of  1688  was  a  .similar  provision  as  to  Protestants,  whom 
the  King  had  disbanded  while  treating  Roman  Catholics  with  favor. 

^  Supra,  page  33.  "  Writs  of  assistance  "  or  general  search-war- 
rants were  a  cause  of  complaint  against  George  III.  before  the  Revo- 
lution, and  the  eloquent  James  Otis  denounced  them.  No  sealed  letter 
can  be  lawfully  o])e".ed  except  under  a  search-warrant.  But  see  96 
U.  S.  727  as  to  lottery  circulars;  143  U.  S.  110. 

2  Supra,  page  1 75. 

8  158  U.  S.  109. 

*  Amendment  V. ;  142  U.  S.  148.  It  is  not  "twice  in  jeopardy"  to 
undergo  a  second  trial  where  the  first  jury  reached  no  verdict  before 
its  discharge.     If  a  witness  has  absolute  immunity  against  future  prose- 

13 


194  CONSTITUTIONAL  STUDIES. 

criminal  prosecutions  shall  have  a  right  to  a  speedy 
and  public  trial  by  an  impartial  j\iry  of  the  State  and 
district  of  the  crime. ^  He  shall  be  informed  of  the 
nature  and  cause  of  the  accusation,  and  be  confronted 
with  the  witnesses  against  him ;  he  shall  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor, 
and  shall  have  the  assistance  of  counsel  for  his 
defence. 2  This  final  clause  at  least  secures  valuable 
rights  to  the  accused  which  the  old  common  law 
curiously  ignored,  and  all  the  foregoing  safeguards 
were  well  worth  expression. 

No  person  shall  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law;  nor  shall 
pj'ivate  property  be  taken  for  public  use  without  just 
compensation. 2  These  are  broad  maxims  constantly 
invoked.  Life,  liberty,  and  property  comprise  those 
personal  rights  which  are  universally  dearest  to  the 
individual,  and  deserve  most  the  law's  equal  protec- 
tion. "  Due  process  of  law  "  guards  those  individual 
rights  from  all  sovereign  interference  apart  from 
such  correct  and  orderly  proceedings,  considerate  of 
private  right,  as  are  imposed  by  what  has  long  been 
called  "the  law  of  the  land,"  —  a  law  sound  in  policy 
and   operating   upon   all   alike. ^      Constitutional   or 

cution,  he  may  be  compelled  to  testifv,  as  the  latest  cases  rule.  161 
U.  S.  G91.     Cf.  142  U.  S.  547. 

1  Various  State  statutes  are  constitutional  which  allow  one  charged 
with  crime  to  waive  voluntarily  a  trial  by  jury  and  elect  to  be  tried  by 
the  court.  14G  U.  S.  314.  Territorial  tri.ils  do  not  require  any  ascer- 
tained "district,"  as  district  relates  to  States.  138  U.S.  157-.  And 
see  supra,  pages  32,  34. 

2  Amendment  VI.     See  IGl  U.  S.  29. 

Amendment  VII.  as  to  jury  trials  in  civil  suits  at  common  law  has 
been  noticed,  supra,  page  175.  In  equity  and  admiralty  suits  jury 
trials  are  in  the  main  discretionary  with  a  court  for  special  issues  of 
fact  only.  Nor  in  the  analogous  Court  of  Claims  procedure  is  a  jury 
trial  es-sential.     102  U.  S.  420. 

^  Amendment  V.  at  close. 

«  153  U.  S.  710. 


FIRST  TEN  AMENDMENTS.  195 

"  bill  of  rights "  provisions  admirably  define  those 
rights  in  America;  and  both  statute  and  case  law 
must  respect  such  fundamental  guaranties  in  order  to 
apply  "due  process  of  law."^  The  identity  in  mean- 
ing of  this  familiar  expression  with  "law  of  the 
land  "  —  both  Anglo-Saxon  phrases  time-honored  —  is 
now  conceded. 2 

"  Taking  property  for  public  use  without  just  com- 
pensation "  was  already  forbidden  in  State  constitu- 
tional law,'"  and  States  to  tliis  day  preserve  the 
organic  prohibition  under  some  variations  of  expres- 
sion. The  right  of  eminent  domain  in  a  government 
to  appropriate  and  control  individual  property  for  the 
public  use  and  welfare,  as  in  laying  out  highways  or 
erecting  public  buildings,  is  admitted,  and  that  right 
is  often  imparted  to  municipal  and  other  corporations ; 
but  the  exercise  of  such  a  right  in  its  many  manifes- 
tations must  respect  individual  ownership  by  award- 
ing not  an  arbitrary  but  a  just  recompense,  which,  if 
not  otherwise  agreed  upon,  must  be  awarded  by  some 
fair  and  impartial  tribunal.*  There  may  be  fran- 
chises or  other  incorporeal  property  as  well  as  property 
corporeal  subjected  to  this  taking.^ 

Excessive  bail  shall  not  be  required,  nor  cruel  and 
unusual  punishments  inflicted.*^     Here  we  find  old 

1  See  Cooley,  229-235.  Hence  do  we  find  statutes  practically  tested 
by  these  more  fundamental  and  enduring  precepts,  wliose  early  inspi- 
ration was  drawn  from  sucli  solemn  documents  as  Magna  Charta.  Our 
Federal  constitution  well  distinguishes  in  this  respect  by  ordaining 
that  instrument  witli  statutes  "made  in  pursuance  thereof,"  etc.,  "the 
supreme  law  of  tlie  land."     Supra,  page  188. 

2  18  How.  272.     And  see  Amendment  XIV. 
2  Supi-a,  page  41. 

*  Cooley,  344-357  ;  152  U.  S.  132  ;  160  U.  S.  499  ;  142  U.  S.  79. 

5  148  U.  S. 312. 

^  Amendment  VIII.  Electrocution  is  not  a  "  cruel  and  unusual 
punishment"  within  the  constitution,  but  rather  in  sense  a  humane 
one.  Nor  can  the  solitary  confinement  of  a  condemned  criminal  be 
deemed  unconstitutional.     142  U.  S.  155. 


196  CONSTITUTIONAL  STUDIES. 

barriers  renewed  against  tyranny;  for  constitutions 
do  not  so  much  create  new  rights  in  the  people  as 
prevent  abuse  under  the  forms  of  justice.  A 
prisoner  once  convicted  by  a  jury  may  be  rightfully 
committed  without  bail  pending  an  appeal. 

IX.,  X.  The  last  two  amendments  of  the  original 
compromise  concern  reserved  sovereign  and  public 
rights  not  imparted  to  this  new  Federal  or  Federo- 
national  government.  Here  it  is  seen  that  the  reser- 
vation made  is  not  so  much  of  State  sovereign  powers 
as  of  that  general  sovereignty  of  the  whole  people 
in  whose  name  the  instrument  of  1787  had  ordained 
a  new  and  more  perfect  Union. i  Under  Articles  of 
Confederation,  it  was  the  States  that  prepared  and 
entered  into  the  league  of  Union;  and  those  articles 
distinctly  asserted  that  the  powers  not  expressly 
delegated  to  the  United  States  in  Congress  assembled 
were  retained  by  the  respective  States. ^  But  in 
adapting  that  assertion  to  the  new  constitution  by 
way  of  amendment,  Congress  purposely  put  forth  a 
phrase  less  favorable  to  State  sovereignty,  by  omitting 
the  former  word  "expressly,"  as  though  some  of  the 
newly  delegated  authority  might  fairly  be  implied, 
and  by  reciting  that  the  powers  not  delegated  to  the 
United  States  by  the  constitution,  nor  prohibited  by 
it  to  the  States,  were  reserved  to  the  States  respec- 
tively, "or  to  the  people,"  a  pregnant  alternative.^ 
So,  too,  in  the  preceding  article  it  was  declared  that 
the  enumeration  in  this  constitution  of  certain  rights 
should  not  be  constrained  to  deny  or  disparage  others 
"retained  by  the  people."* 

In   all    strict   Confederacies,    as    history   teaches, 
either  the  strongest  States  rule  or  anarchy  prevails. 

1  Const.,  Preamble.  ^  Amendment  X. 

2  Articles,  II.  *  Amendment  IX. 


LATER  AMENDMENTS.  197 

But  in  America,  under  the  constitution,  the  subjects 
of  the  present  Union  are  not  States,  but  private  citi- 
zens, and  a  peculiar  representation  tends  to  equalize 
State  influence.  To  quote  from  De  Tocqueville,  the 
United  States  constitute  no  longer  a  Federal  govern- 
ment, but  an  incomplete  national  government,  which 
is  neither  exactly  national  nor  exactly  federal,  and 
two  sovereignties  exist  in  each  other's  presence.^ 

XL,  XII.  The  eleventh  amendment,  which  re- 
strains the  judicial  power  of  the  Union  in  suits  by 
non-resident  individuals  against  a  State,  has  already 
been  considered. ^  So  also  has  the  twelfth  amend- 
ment, which  cured  some  defects  in  the  primitive 
machinery  of  Presidential  elections,  without  essen- 
tially changing  its  operation.^ 

XIII.-XV.  Of  the  three  final  amendments,  the 
effect  is  cumulative  towards  one  general  end ;  namely, 
to  establish  in  essential  citizenship  a  race  once  held 
in  bondage.  The  thirteenth  amendment,  the  direct 
logical  outcome  of  our  Civil  War  and  of  President 
Lincoln's  militar}^  emancipation,  abolished  forever,  in 
clear  and  simple  phrase  borrowed  from  the  old  ordi- 
nance of  1787,  not  negro  slavery  alone,  but  all 
slavery  and  involuntary  servitude,  within  the  United 
States  or  any  place  sul)ject  to  their  jurisdiction, 
except  for  crime  upon  due  conviction.^ 

The  fourteenth  amendment,  further  extending  the 
scope  of  social  reconstruction  which  followed  this 
first  grand  achievement  and  the  close  of  armed  con- 

1  De  Tocqueville's  America,  199. 

2  Supra,  page  173.     See  140  U.  S.  1. 
^  Supra,  page  161. 

*  Amendment  XIII.  Asiatic  slavery  cannot  lawfully  exist  in 
America,  more  than  African,  nor  can  a  system  of  peonage  or  of 
compulsory  adult  apprenticeship. 


198  CONSTITUTIONAL  STUDIES. 

flict,  is  partly  vindictive  or  retributive,  and  yet  not 
harshly  so  either  in  expression  or  enforcement,  con- 
sidering the  provocation.  President  Lincoln  was 
now  dead.  The  pursuance  of  a  policy  towards  van- 
quished fellow-citizens  passed  into  other  control ;  and 
the  States  lately  resisting  were  compelled  to  pass 
under  the  yoke,  and  sanction  new  terms  of  pacifica- 
tion, before  normal  relations  with  the  Union  were 
fully  restored.  Hence  the  adoption  in  turn  of  the 
fourteenth  and  fifteenth  amendments,  by  States 
Southern  as  well  as  Northern,  in  a  co-operative  assent 
under  the  forms  of  the  constitution.  ^ 

Three  prime  objects  are  presented  by  the  four- 
teenth amendment:  (1)  the  better  protection  of  the 
emancipated  negro  as  a  citizen  of  the  United  States, 
under  tlie  broadening  of  former  definitions ;  ^  (2)  the 

1  Article  XIII.  had  been  unconditioually  ratified  by  thirty-two 
States  out  of  thirty-six.  Article  XIV.  was  ratified  by  thirty-three 
States  out  of  thirty-seveii,  aud  Article  XV.  by  thirty  States  out  of 
thirty-seven.  All  this  was  far  in  excess  of  the  requisite  three-fourths. 
The  States  rejectiug  ameudmeuts,  in  every  such  instance,  were  either 
border  slave  States,  not  under  military  control,  or  those  of  the  free 
North,  where  public  sentiment  opposed  the  reconstruction  policy  of 
Congress. 

The  constitutional  effect  of  State  rejection  followed  by  acceptance, 
and  of  State  acceptance  followed  by  rejection,  might  have  come  up  for 
discussion  liad  tlie  vote  been  closer  in  adopting  these  three  amend- 
ments, for  liistorical  precedents  were  here  furuislied.  (I )  Conditional 
ratification  is  usually  to  be  considered  no  ratification  in  a  constitutional 
.sense ;  and  such  Vjeiug  the  prevalent  belief  wlieu  the  constitution  of 
1787  came  before  the  conventions  of  the  original  States,  reluctant 
State  conventions  abstained  from  such  action.  (2)  State  acceptance 
is  probably  constitutional,  even  though  a  previous  legislature  or  con- 
vention has  rejected,  provided  such  ratification  follows  within  a  reason- 
able time.  (3)  But  after  a  full  acceptance,  it  seems  tliat  a  State 
cannot  riglitfully  rescind  ratification  and  then  reject ;  if,  at  all  events, 
some  other  State  has  meanwhile  ratified  upon  the  faith  of  that  previous 
acceptance.  These  three  statements  of  doctrine  find  analogies  in  the 
conmion  law  of  private  transactions. 

2  Under  tlie  well-known  "  Dred  Scott"  decision  of  1857  (19  How. 
393),  tlie  rights  of  American  citizenship  were  denied  by  the  Su])reme 
Court  to  the  negro,  whether  as  a  slave  or  a  freeman. 


CIVIL    WAR  AMENDMENTS.  199 

punishment  of  citizens  lately  rebellious;  (3)  the 
integrity  of  public  credit  and  the  public  debt  of 
the  United  States,  by  upholding  the  claims  of  loyalty 
and  repudiating  those  of  disloyalty  under  the  late 
conflict.^  A  broad  and  enlightened  status  of  citizen- 
ship for  the  future,  based  alone  upon  birth  or  natural- 
ization in  the  United  States  subject  to  its  jurisdiction, 
without  other  adventitious  distractions,  is  here  set 
forth  for  application,  both  to  the  United  States  and 
to  the  State  wherein  the  person  resides.  States  are 
forbidden  to  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States;  to  deprive  any  person 
of  life,  liberty,  or  property  without  "  due  process  of 
law;  "  or  to  deny  to  any  person  within  local  jurisdic- 
tion "the  equal  protection  of  the  laws."'-^  This 
amendment,  as  since  construed  in  the  courts,  does 
not  change  radically  the  former  relation  of  State  and 
Federal  governments ;  but  leaves  still  to  the  several 
States  exclusively  the  protection  of  all  civil  rights 
and  privileges  which  are  not  expressly  or  by  clear 
intendment  vested  in  the  Federal  government  con- 
formably to  its  nature  and  attributes.^  Next  a  new 
apportionment  basis  for  representatives  in  Congress, 
based  upon  numbers,  fitly  supersedes  that  which  in 
1787   compromised   as    between   the    free  and  slave 

^  Ameudment  XIV. 

2  Ib.%\.  States  suLject  to  the  above-expressed  constraints  still 
retain  the  police  power  as  before;  and  a  "civil  rights  "  bill  of  Congress 
to  compel  an  equal  and  indiscriminate  intercourse  of  races  at  hotels,  on 
railway  cars,  or  in  the  schools,  exceeds  its  prescribed  autliority.  109 
U.  S.  3.  Separate  race  accommodations  and  facilities  may  be  tluis 
provided.     163  U.  S.  537. 

3  92  U.  S.  214 ;  116  U.  S.  2.')2;  Cooley,  258.  This  amendment  can- 
not override  public  rights  of  a  State  in  the  nature  of  an  easement. 
160  II.  S.  452.  Nor  State  process  wliich  affords  to  all  parties  alike  a 
fair  liearing.  150  U.  S.  380;  ICO  U.  S.  389.  But  all  citizens  are  now 
equal  before  the  law ;  and  no  racial  distinctions,  so  far  as  certain 
political  rights  are  concerned,  can  be  permitted.  162  U.  S.  565  (as  to 
drawing  jurors). 


200  CONSTITUTIONAL   STUDIES. 

population.^  Negro  representation  is  to  be  by  num- 
bers henceforth  where  before  it  was  merely  fractional. 
States  are  not  thereby  compelled  in  consequence  to 
allow  all  negroes  to  vote;  but  wherever  a  State 
abridges  male  suffrage  "except  for  participation  in 
rebellion,  or  other  crime,"  its  basis  of  representation 
in  the  House  shall  be  reduced  proportionally.  ^  Be- 
sides this  granted  disfranchisement  of  "  rebel  partici- 
pants "  (which  the  resisting  States  were  never  inclined 
to  put  in  force),  all  former  members  of  Congress 
and  State  or  Federal  officers  who  had  engaged  in 
rebellion  in  violation  of  a  previous  oath  to  support 
the  constitution  of  the  United  States  were  temporarily 
banished  from  the  public  service  under  this  four- 
teenth amendment;  but  Congress  long  ago  by  a  vote 
of  two-thirds  of  each  house  removed  this  disability, 
as  permitted.^  Finally  the  validit}'  of  the  authorized 
public  debt  of  tlie  United  States,  including  pensions 
and  bounties  for  services  in  suppressing  rebellion, 
shall  not  be  questioned;  while,  on  the  other  hand, 
neither  the  United  States  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation  incurred  in  aid  of  the 
rebellion,  nor  any  claim  for  the  loss  or  emancipation 
of  any  slave,  but  all  such  debts,  obligations,  and 
claims  shall  be  held  illegal  and  void.* 

The  fifteenth  amendment,  though  framed  and  pro- 
posed by  Congress  in  turbulent  times,  rises  once 
more    to   unimpassioned  dignity  of  statement.     By 

1  Supra,  page  105,  "three  fifths  of  all  other  persons"  (/.  c,  of 
slaves). 

2  Amendment  XIV.,  §  2.  This  reduction  has  never  been  really 
enforced  liy  Congress,  and  tliere  are  practicnl  difficulties  to  determin- 
ing tlie  constitutional  proportion  in  figures.  There  are  Northern  as 
well  as  Soutliern  States  which  a])i)]y  an  educational  test  in  restraint  of 
general  suffrage,  and  thus  come  equally  witliin  scope  of  the  constitu- 
tional threat. 

8  Amendment  XIV.,  §  3. 
*  Jb.  §  4. 


CIVIL    WAR  AMENDMENTS.  201 

this  constitutional  change  the  elective  franchise  is 
broadened  for  the  late  slave's  benefit,  and  a  rule  is 
made  mandatory  upon  States  which  Congress  had 
previously  attempted  to  establish  by  policy. ^  All 
abridgment  of  the  right  to  vote  is  forbidden  as  to 
citizens  of  the  United  States  in  the  present  ample 
sense  on  any  account  of  race,  color,  or  previous  con- 
dition of  servitude;  but  otherwise  local  suffrage  is 
still  left  to  each  State's  regulation  as  before,  with 
only  a  new  Federal  right  to  interfere  against  racial 
distinctions  at  the  polls. ^  For  suffrage  here  means 
civic  participation  in  government;  it  is  not  a  natural 
but  a  political  right;  and  all  such  participation  is 
usually  limited  by  the  local  government  policy.^ 

Such  was  to  be  the  increased  responsibility  of  the 
Union  under  these  last  three  amendments  that  in 
each  instance  Congress  was  expressly  empowered  to 
enforce  the  article  by  appropriate  legislation,*  —  a 
provision  not  to  be  found  in  any  earlier  amendments 
of  this  constitution.  That  power  is  limited,  however, 
in  meaning  to  the  just  scope  of  each  separate  amend- 

1  Cf.  Amendment  XIV.,  §  2  ;  page  200. 

"  Amendment  XV.  Such  a  prohibition  would  apply  to  State  ballot 
laws  which  exclude  a  Chinese  citizen  of  the  United  States,  though 
negroes  are  more  immediately  concerned,  whose  citizenship  is  so 
largely  their  birthright.  A  State  may  still  impose  property  or  educa- 
tional tests  for  the  ballot,  or  disfranchise  for  crime,  but  all  such  tests 
must  apply  equally  to  whites  and  blacks,  without  racial  distinction. 
92  U.  S.  214,  542. 

8  See  Part  III.,  post,  showing  State  restrictions  upon  suffrage  at  the 
present  day.  Various  political  reasons  induced  the  passage  of  this 
fifteenth  amendment,  and  among  them  that  the  ballot  would  prove  to 
be  educational  and  a  means  of  enlightened  self-protection  to  the  freed- 
men  still  dwelling  among  their  late  masters.  But  the  apprenticeship 
of  liberty  proves  always  slow  and  arduous ;  and  the  first  real  results 
of  this  experiment  were  certainly  disappointing.  The  full  constitu- 
tional purpose  of  this  amendment,  however,  for  permanent  effect  is 
just  and  noble,  and  in  aid  of  a  humanity  more  generous  than  nations 
and  kingdoms  ever  compassed  before. 

*  Final  section  in  each  amendment. 


202  CONSTITUTIONAL  STUDIES. 

ment;  "which,  as  we  have  seen,  to  the  disappoint- 
ment, doubtless,  of  many  who  aided  these  constitu- 
tional changes,  leaves  still,  as  in  1787,  a  wide  range 
of  State  discretionary  action.  The  Federal  constitu- 
tion, here  as  elsewhere,  is  self-executing  in  most  of 
its  prohibitions,  and  requires  no  legislation  from 
Congress  to  make  them  binding.^  This  self-execut- 
ing jDower  may  be  inferred  in  various  other  instances 
where  the  public  interest  requires  it;  as  in  enabling 
the  Executive  or  Supreme  Court  to  maintain  due 
independence  of  Congress,  or  so  that  the  citizen  shall 
stand  secure  in  his  sacred  individual  rights  against 
the  government. 

1  E.  g.,  in  the  thirteenth  and  fifteenth  amendments,  and  in  most 
portions  of  the  fourteenth. 


PART   III. 
STATE   CONSTITUTIONS   SINCE   1789. 

I. 

HISTORICAL  SEQUENCE. 

From  the  day  that  the  new  Federal  constitution  of 
1787  went  into  full  effect,  that  admirable  scheme  of 
union  gained  a  conspicuousness  in  the  eyes  of  man- 
kind, and  a  paramount  influence  over  the  destinies  of 
the  American  people  that  no  single  State  instrument 
could  possibly  have  rivalled.  This  constitution,  as 
perfected  by  the  "  bill  of  rights  "  amendments  which 
Congress  promptly  proposed  and  the  States  as 
promptly  adopted,  became  at  once  a  model  for  the 
new  State  constitutions  of  Pennsylvania  and  Georgia 
already  in  preparation;  and  scarcely  a  State  in  the 
whole  enlarged  Union  can  be  named  at  the  present 
day  whose  fundamental  law  does  not  pattern  after 
that  immortal  instrument  in  one  detail  or  another. 
But  we  should  bear  in  mind,  notwithstanding,  that 
much  of  that  Federal  framework  is  inapplicable  to 
American  statehood;  and  further  that  some  of  the 
best  basic  ideas  of  its  architecture  were  derived  from 
thirteen  pre-existing  State  charters  in  successful 
operation.  Free  government  in  America  received  by 
1789  a  redoubled  rather  than  an  original  impulse. 
Later  States  have  imbibed  in  their  fundamental 
written  law  much  of  the  spirit  and  formal  expression 


204  CONSTITUTIONAL  STUDIES. 

of  those  leading  commonwealths  whose  glory  forever 
gilds  our  earliest  annals.  Thus  Kentucky,  Virginia's 
own  offspring,  took  her  institutions  from  the  parent 
State.  Much  of  the  substance  of  the  healthy  Massa- 
chusetts constitution  became  the  flesh  and  blood  of 
those  tliriving  new  States  which  New  Englanders 
reared  in  the  free  territory  northwest  of  the  Ohio 
River;  while  Vermont,  admitted  into  the  Union  in 
1791,  the  first  of  new-born  States  with  Kentucky, 
chose  to  pattern  her  instrument  of  government  very 
closely  after  that  of  Benjamin  Franklin's  Pennsyl- 
vania, which  the  latter  State  in  1790  supplanted.  ^ 

There  are  at  the  present  day  forty-five  full-fledged 
States  in  the  American  Union,  as  against  the  thirteen 
that  originally  composed  it;  and  of  that  number  very 
few  can  be  named  more  than  fifty  years  old,  whose 
constitution  has  not  been~  repeatedly  recast  in  conven- 
tion and  rewritten.  Old  Massachusetts  is  the  only 
State  of  them  all  which  can  show,  like  the  present 
Federal  Union,  a  primitive  constitution  still  vigor- 
ously operating,  which,  once  adopted  in  the  eigh- 
teenth century,  has  never  been  superseded;  and  in 
both  instances  amendments  since  added  have  wrought 
much  practical  change.'^  New  Hampshire  and  Ver- 
mont furnish  the  only  other  examples  of  an  eighteenth- 
century  constitution  still  in  force  at  all.  As  time 
goes  on,  the  national  flag  of  this  Union  seems  beau- 
tifully to  symbolize  the  true  historical  relation  of  the 
several  States  to  national  development.     Those  thir- 

1  Vermont's  constitution  of  1786  first  made  this  copy;  and  her  con- 
stitution of  1793  after  admission  retained  the  image. 

2  A  computation  made  in  1885  by  a  careful  historical  scholar  shoM^ed 
among  other  statistics  that  four  States  —  Georgia,  Soutli  Carolina, 
Texas,  and  Virginia — had  each  lived  under  five  successive  constitu- 
tions; while  Louisiana  adojiled  lier  sixth  coustitution  in  1879.  These 
figures  did  not  include  changes  in  those  States  tliat  might  liave  taken 
])lace  during  the  Civil  War.  Horace  Davis's  American  Constitutions, 
IG;  Johns  Hopkins  Historical  Studies. 


HISTORICAL   SEQUENCE.  205 

teen  stripes  are  emblems  of  thirteen  commonwealths, 
the  creative  source  of  the  whole  American  Union; 
but  the  more  in  number  the  stars  that  crowd  that 
azure  field  as  time  goes  on,  the  less  distinctive 
becomes  the  individual  light  that  twinkles  from 
them. 

During  the  remnant  of  the  eighteenth  century 
which  succeeded  1789,  and  while  the  Federalists  as 
a  party  retained  control  of  national  affairs,  conserva- 
tism was  predominant  in  the  States ;  and  this  indeed 
was  the  essential  reason  why  Pennsylvania  and 
Georgia  reformed  at  once  their  turbulent  establish- 
ments. But  the  latter  State,  with  a  restless  popula- 
tion, after  amending  within  six  years  its  second 
constitution  of  1789,  adopted  in  1798  a  third  new 
draft  of  government.  The  great  gain  of  Federal 
example  to  national  harmony  and  stability  had  been  in 
persuading  each  of  these  two  States  to  supersede  that 
tumultuous  assembly  of  a  single  house  which  had 
exerted  much  undefined  authority,  by  a  truly  Ameri- 
can legislature  of  two  branches;  though  Vermont 
chose  to  experiment  further  for  herself  in  that  former 
direction.  Pennsylvania,  besides,  chose  henceforth 
a  single  executive,  after  the  true  American  model,  in 
place  of  a  directory,  strengthening  the  independence 
of  that  department  against  the  Legislature,  as  the 
Federal  instrument  had  done. 

The  Republican  era  of  Jefferson  and  Madison  which 
merged  into  the  stormy  war  of  1812  with  European 
embroilment,  after  a  marvellous  season  of  domestic 
prosperity,  and  which  happily  escaped  by  1815  with 
peace  and  renewed  national  honor,  was  not  produc- 
tive of  great  fundamental  change  in  the  existing 
States.  This,  however,  was  the  era  of  new  national 
growth  westward  and  in  the  valley  of  the  Mississippi, 
now  rapidly  reclaimed  from  Indian  occupation    and 


206  CONSTITUTIONAL  STUDIES. 

extended  by  purchase  to  the  wilderness  of  the  Rocky 
Mountains;  and  west  of  the  AUeghanies,  as  indeed 
throughout  the  Union,  the  impulse  towards  republi- 
can and  uniform  government  was  strong  and  steady. 
Not  one  of  the  eighteenth-century  States  remodelled 
its  constitution  during  the  first  seventeen  years  of 
the  nineteenth  century,  though  local  changes  were 
introduced  here  and  there  through  the  process  of 
amendment.  Two  new  States,  however,  Ohio  and 
Louisiana,  the  antipodes  of  national  sisterhood,  were 
admitted  to  the  Union  during  this  era. 

From  1816  to  1835  ensues  a  period  of  perfect  peace, 
recuperation,  and  internal  development,  of  a  growing 
native  confidence  in  popular  institutions,  and  a  boast- 
ful disposition  to  make  proselytes  of  the  old  world. 
Self-government  had  vindicated  its  claims  by  Ameri- 
can example,  and  from  European  systems  America 
felt  detached  forever.  Six  new  States,  each  with  its 
accepted  constitution,  were  admitted  into  the  Union 
during  the  earlier  portion  of  this  era,  at  the  average 
rate  of  one  State  a  year.^  In  a  majority  of  the  pre- 
existing States  constitutions  were  largely  overhauled, 
and  rewritten  or  vitally  amended;  and  Connecticut 
in  1818  threw  aside  finally  the  venerable  royal  charter 
which  had  served  hitherto  for  republican  govern- 
ment, and  clothed  herself  with  a  modern  constitution 
after  the  prevailing  fashion.  The  tendency  of  the 
nineteenth  century  now  became  manifest,  for  one  and 
all  of  these  United  States,  to  abolish  all  property  and 
religious  tests,  to  enlai-ge  the  franchise  for  the  white 
man,  to  strengthen  each  State  executive  against  the 
Legislature,  while  putting  greater  curb  upon  the 
discretion  of  that  latter  body,  to  use  the  judiciary  as 
a   political   check,  and   generally   to   give  the  reins 

1  Indiana.  Mississippi,  Illinois,  Alabama,  Maine  (by  separation  from 
Massachusetts),  Missouri,  1816-1821. 


HISTORICAL  SEQUENCE.  207 

more  completely  into  the  hands  of  the  people,  so 
that  the  governed  might  become  the  governing  also. 
By  this  time  the  example  of  American  independence, 
with  its  written  proclamation  of  human  rights, 
became  the  solace  and  inspiration  of  the  feebler 
Si)anish-American  colonies  to  the  south  of  us. 

To  this  era  succeeded  1836-1861,  — a  period  when 
a  still  more  pronounced  and  combative  democracy 
wrestled  with  conservatism,  and  other  bitter  strifes 
went  on,  until  the  slavery  conflict,  forcing  its  own 
dangerous  rivalry  to  the  front,  precipitated  the  whole 
United  States  into  a  civil  strife  so  terrible  that  it 
seemed  almost  as  if  the  sun  of  the  great  republic  had 
gone  down  forever  in  blood  and  sectional  dissolu- 
tion. In  most  States,  meanwhile,  the  old  barriers  of 
caste  and  property  were  broken  down,  and  through 
the  brief  and  impatient  tenure  that  ensued,  office- 
holding  lost  much  of  its  traditional  dignity  and  sta- 
bility. Not  only  governors  and  the  high  executive 
officials  were  now  subjected  to  the  will  of  com- 
mon voters,  as  expressed  at  the  polls,  but  judicial 
incumbents  as  well.  Party  spoils  were  proclaimed 
the  prize  of  party  victors ;  and  with  wealth  increas- 
ing besides,  which  sought  special  favors  from  public 
officers  and  the  Legislature,  corruption  grew,  which 
honest  voters  strove  to  repress  by  straining  tighter 
the  cords  of  fundamental  restraint.  Splendid  abili- 
ties, devoted  love  of  Union,  struggled  in  the  souls 
of  great  statesmen  with  the  weakness  of  compromise 
and  a  fatal  tendency  to  palter  public  interests  for 
temporary  advantage,  while  the  arrogance  of  material 
strength  tempted  to  trample  upon  the  rights  of 
weaker  nations.  The  star  of  manifest  destiny  for  a 
while  led  on  to  continental  empire ;  but  though  the 
Union  triumphed  steadily  and  enlarged  its  broad  area 
on  the  Pacific,   territorial  aggrandizement  was   not 


208  CONSTITUTIONAL   STUDIES. 

honorable,  as  it  had  been  in  the  earlier  and  simpler 
years  of  the  century.  A  swarm  of  new  States 
swelled  the  catalogue  of  written  constitutions  for 
this  portentous  era;  California,  the  seventh  among 
them,  disturbing  in  1849  the  former  equipoise  of 
free  and  slave  States  for  admission;  and  the  pro- 
tracted struggle  over  Kansas,  after  the  rej^eal  of 
the  Missouri  compromise,  arousing  the  most  vehe- 
ment sectional  passion.  The  aggregate  number  of 
newly  admitted  States  for  this  period  was  ten,  two 
of  them  furnishing  the  first  fruits  of  Mexican 
dismemberment.  ^ 

By  1861  democratizing  influences  had  nerved  our 
whole  people,  and  taught  them  a  self-reliance  which 
was  to  become  yet  stronger.  Had  it  been  otherwise, 
a  civil  war,  which  drained  the  resources  of  States 
arrayed  in  deadly  strife,  would  have  ruined  this 
Union.  Each  adversary  fought  with  courage  and 
determination,  but  victory  crowned  the  stronger  and 
in  sight  of  Heaven  the  worthier  cause.  During 
those  four  years  of  fight  little  heed  was  given  by  the 
Federal  government  to  State  extension ;  but  Virginia 
being  torn  asunder  in  the  struggle,  a  loyal  and  sepa- 
rate State,  known  as  West  Virginia,  was  organized 
in  1862,  and  Congress  admitted  in  1864  from  the 
Rocky  Mountain  region  the  sparse  mining  State  of 
Nevada.  The  period  of  southern  State  reconstruc- 
tion lasted  for  about  twelve  years  from  the  submis- 
sion and  disarmament  of  that  section  in  April,  1865. 
New  State  constitutions  now  forced  southern  inhabit- 
ants not  only  to  acquiesce  in  the  legal  extinction  of 
slavery  throughout  the  Union,  but  to  repudiate,  with 

1  Arkansas,  Michigan,  Florida,  Iowa,  Texas,  Wisconsin,  California, 
Minnesota,  Oregon,  and  Kansas.  The  numerous  proposed  constitutions 
of  this  last-named  State  ])rior  to  its  admission,  record  the  desperate 
struggle  of  free  and  proslavery  settlers  for  the  mastery. 


HISTORICAL  SEQUENCE.  209 

tlie  repeal  of  their  several  ordinances  of  secession, 
tlie  whole  doctrine  of  State  sovereignty  upon  which 
the  theoretical  right  to  secede  had  been  based. 
Other  conditions  yet  more  galling  were  imposed  by 
amendments  of  the  Federal  constitution,  whose 
supremacy  was  henceforth  unquestioned.^ 

From  the  accession  of  President  Hayes  in  March, 
1877,  the  rehabilitation  of  the  once  insurgent  States 
became  complete.  Military  interference  in  the  south- 
ern section  now  ceased,  and  the  Union  rapidly 
regained  its  normal  condition  with  a  former  obstacle 
to  national  harmony  now  fairly  removed.  A  new 
era  of  fraternal  reconciliation  now  commenced  such 
as  the  world  has  seldom  witnessed.  Federal  amnesty 
was  freely  accorded  by  Congress  and  the  President, 
while  Southern  States  hastened  to  blot  out  as  they 
might  the  disabilities  of  their  military  champions 
under  their  own  organic  law.  Meanwhile  at  the 
North  and  in  the  growing  West  States  always  loyal 
have  renovated  their  local  institutions  with  a  stronger 
confidence  than  ever  in  the  permanence  of  the 
American  Union,  and  with  a  fuller  determination  to 
hold  government.  State  or  Federal,  as  closely  amen- 
able as  possible  to  public  opinion.  The  appointing 
of  all  high  officers  of  the  State  has  been  largely 
taken  from  chief  magistrates  and  the  Legislature. 
The  Chief  Executive,  now  the  sole  choice  of  the 
voters,  is  viewed  more  than  ever  as  the  vicegerent  of 
popular  authority.  Fundamental  limitations  accu- 
mulate upon  legislation  and  the  incurring  of  public 
debt.  Even  the  State  judiciary,  though  strengthened 
against  rash  and  tumultuous  assault,  is  made  to  feel 
its  final  dependence  upon  the  voters;  and  the  pas- 
sionate desire  of  an  American  democracy  to  control 
and  limit  public  government,  at  the  present  day,  is 

^  Supra,  page  198. 
14 


210  CONSTITUTIONAL   STUDIES. 

in  strong  contrast  with  the  deferential  and  implicit 
confidence  which  the  common  people  reposed  in  their 
representatives,  those  especially  of  their  legislatures, 
a  century  ago.^  Those  brief  instruments  of  State 
government,  in  the  earlier  era,  which  left  a  skeleton 
outline  for  legislatures  to  fill  up  at  will,  have  given 
place  long  since  to  lengthy  constitutions,  full  of  local 
specifications  and  of  details  jealously  worked  out  by 
description,  like  a  huge  act  of  legislation. ^ 

1  The  new  States  admitted  into  the  Union  from  1865  to  1897  are  as 
follows  :  Nebraska  (1867),  Montana  (1889),  North  Dakota  (1889),  South 
Dakota  (1889),  Washington  (1889),  Idaho  (1890),  Wyomiug  (1890), 
Utah  (1894).     Total  present  number  of  States  in  the  Union,  forty-five. 

2  Some  have  severely  criticised  the  present  distrustful  aud  prolix 
tendency  of  expression  in  our  latest  State  constitutions.  One  of  the 
ablest  of  such  critics,  tlie  late  Governor  William  E.  Russell,  of  Massa- 
chusetts, in  an  address  at  Yale  University  (1894),  sets  forth  earnestly 
some  of  the  most  forcible  objections  to  such  full  aud  uuphilosophical 
detail  in  an  organic  instrument.  But  somethiug  may  be  said  on  tlie 
other  side.  The  notable  simplicity  of  our  Federal  con.-;titution,  on  which 
such  critics  dwell,  is  hardly  in  contrast ;  for  its  framers,  after  much 
discussion  and  practical  experience  of  the  particular  problem,  under- 
took merely  to  draw  out  better  and  define  the  organic  powers  adequate 
for  maintaining  an  efficient  Union  with  a  few  supreme  concerns  com- 
mitted to  it ;  while  in  the  several  State  governments  remains  that 
great  residuary  mass  of  functions  aud  authority,  such  as  changes  and 
develops  of  necessity  with  tiie  evolution  of  society.  State  legislation 
for  such  vast  and  diversified  concerns  must  necessarily  grow  aud  in- 
crease in  complexit}'  as  .society  multiplies  and  concentrates  its  popula- 
tion ;  and  so,  too,  must  the  Slate  fundamental  law,  wliich  controls  that 
legislation,  take  on  a  like  incongruous  growth  of  provision.  Massa- 
chusetts is  praised  for  keeping  to  the  old  and  simple  landmarks  of  con- 
stitutional government ;  and  yet  in  that  roving  discretion  still  left  to 
tlie  Massachusetts  Legislature  under  an  ancient  constitution,  we  see 
the  cause  and  occasion  of  tiiose  constant  and  prolonged  annual  sessions 
from  wliicli  most  other  States  are  now  hap])ily  exempt;  and  tlie  fact, 
for  instance,  that  mere  statute  enactment  in  tliat  State  promotes  private 
iuc()r))oration  under  general  laws,  while  State  constitutions  elsewhere 
comjiel  it,  does  not  deter  tlie  scliemcrs  from  constantly  seeking  special 
privileges  and  modifications  for  tlicmselvcs,  and  tluis  at  least  consum- 
ing the  pulilic  time,  if  not  inducing  worse  dangers.  Tlie  true  course 
for  States  seems  to  be  to  avoid  the  evils  of  too  close  a  specification,  on 
the  one  hand,  in  a  written  framework  of  government,  and  too  lax  a 
discretion  to  transient  representatives  of  the  people  on  the  other. 


IT. 


METHODS  OF  FUNDAMENTAL  ADOPTION  AND 
CHANGE. 

How  little  stress,  in  framing  and  putting  into 
public  force  a  State  constitution,  was  laid  upon  the 
direct  approval  of  the  voters  prior  to  the  Federal 
example  of  1787,  or  indeed,  in  that  Federal  instru- 
ment itself,  we  have  already  remarked.  ^  American 
statesmen  in  those  days  thought  it  a  sufficient  resort 
to  first  principles  for  the  people  to  choose  special 
representatives  to  a  convention  —  since  a  convention 
derived  a  deeper  sanction  than  a  legislature  —  and 
then  leave  that  convention  to  its  own  unfettered  and 
final  discretion.  To  that  earlier  practice  of  the 
States  Massachusetts  and  New  Hampshire  are  seen 
to  have  constituted  the  only  clear  exception ;  but  the 
more  fundamental  sanction  which  those  States  chose 
so  early  to  rest  upon  has  gradually  become  the  com- 
mon condition.  In  one  or  two  very  recent  instances, 
to  be  sure,  where  a  prime  and  perplexing  object  of 
constitutional  reform  has  been  to  reduce  a  voting 
element,''^  a  State  convention  has  assumed  to  establish 
as  well  as  shape  out  the  new  organic  law.  But  for 
real  homogeneous  communities  of  these  United  States, 
where  the  majority  rules,  the  true  sanction  of  a  con- 
stitutional convention  must  consist,  henceforth  and 

1  Supra,  pages  47,  185. 

2  As  recently  (1896)  in  South  Carolina,  where  there  is  a  large  negro 
element  of  population,  and  (1897)  in  Delav/are. 


212  CONSTITUTIONAL  STUDIES. 

forever,  while  self-government  sustains  itself,  not  in 
the  choice  of  constituent  representatives  alone  to  that 
convention,  but  in  the  ultimate  approval  at  the  polls 
of  that  convention's  work  as  formally  submitted. 

The  change  in  this  popular  direction  came  slowly 
in  America,  and  long  after  the  nineteenth  century 
had  begun. ^  New  Hampshire's  new  constitution  of 
1792  went  to  the  voters,  and  was  ratified  by  them, 
like  her  earlier  one.  But  this  was  an  exceptional 
instance.  On  the  other  hand,  the  amendments  of  a 
New  York  convention  in  1801,  artfully  procured, 
were  promulgated  as  final  without  any  such  submis- 
sion ;  and  so  was  it  with  new  constitutions  somewhat 
earlier,  of  South  Carolina  in  1790,  Delaware  in  1792, 
and  Georgia  in  1798.'-^  Pennsylvania's  convention 
of  1789  had  framed  a  radically  new  instrument  of 
government;  and  after  adjourning  in  1790,  that  the 
people  might  examine  but  not  pass  upon  the  work, 
it  reassembled  a  few  months  later  and  formally  pro- 
claimed this  new  constitution  in  force.  With  States 
newly  admitted  to  the  Union  at  the  close  of  the  last 
century,  the  course  pursued  was  the  same.  Conven- 
tions framed  and  put  in  force  the  Kentucky  constitu- 
tions of  1792  and  1799;  those  of  Vermont  in  1793 
and  of  Tennessee  in  1796  were  ordained  in  like 
manner. 

Ohio's  first  constitution  (1802),  followed  by  that 
of  Louisiana  (1812),  each  framed  by  a  territorial  con- 
vention under  an  enabling  act  of  Congress,  but  not 
submitted  to  the  people,  recognized  among  other 
provisions  the  riglit  of  a  legislature  ^  to  submit  to 
the  people  on  future  occasion  whether  there  should 

*  See  notes  to  Poore's  Constitutions,  wliich  the  ofBcial  text  of  these 
early  instruments  serves  to  confirm. 

2  As  also  the  Georgia  amendments  of  1795. 

2  In  Ohio  by  a  two-thirds  vote ;  in  Louisiana  by  a  majority. 


FUNDAMENTAL  ADOPTION.  213 

be  a  constitutional  convention ;  but  as  to  the  popular 
referendum  of  such  a  convention's  work  the  instru- 
ment vv^as  silent.^  It  was  the  era  next  succeeding 
the  peace  of  1814  that  saw  the  first  decided  advance 
since  1787  of  the  popular  submission  doctrine  in  the 
United  States.  Connecticut,  in  1818,  when  setting 
aside  the  old  colonial  charter,  submitted,  after  the 
Massachusetts  and  New  Hampshire  fashion,  her  new 
constitution  to  the  people,  and  that  instrument  was 
ratified  at  the  polls.  Next,  New  York  in  1821 
invoked  the  same  popular  test  to  tlie  adoption  of  a 
new  framework  of  government.  Massachusetts,  in 
1820,  held  a  convention  and  proposed  important 
changes  in  the  organic  law,  some  of  which  carried  at 
the  polls  while  others  miscarried.  Great  Southern 
States,  from  1830  to  1835,  such  as  Virginia,  North 
Carolina,  and  Tennessee,^  held  conventions,  each  of 
which  framed  fresh  constitutions,  and  submitted 
them  to  the  people  of  the  State,  by  whose  majority 
vote  each  and  all  became  ratified  and  effectual. 

Pennsylvania's  convention  of  1790  had  been  called 
at  discretion  on  the  seventh  year  by  the  "Censors," 
a  popular  council  revived  in  Vermont's  new  constitu- 
tion, just  after  Pennsylvania  had  dispensed  w^ith  it. 
Other  old  States,  whose  Revolutionary  constitutions 
had  made  no  express  provision  for  change  or  super- 
sedure,  felt  an  inherent  competence  to  summon  a  new 
convention  at  any  time  for  either  purpose.  But, 
following  the  example  set  by  the  Federal  constitution 
and  some  still  earlier  State  instruments,  we  see 
special  provisions  made  at  once  for  the  process  of 
simple  constitutional  amendment  without  calling  a 
convention  at  all.     Thus  Delaware   (1792)   adopted 

1  Tennessee's  first  constitution  of  1796  was  in  this  respect  similar, 
and  so  were  tliose  of  Kentucky  and  Dehiware  ia  1792. 

2  Also,  apparently,  Mississippi  in  1832. 


214  CONSTITUTIONAL   STUDIES. 

the  Maryland  rule  of  177G,  long  favored  in  the 
Union,  that  one  legislature  shall  propose  an  amend- 
ment by  a  specified  vote  exceeding  a  bare  majority, 
and  the  next  after  an  intervening  general  election 
shall  pass  that  amendment  similarly,  and  thereby 
give  it  full  force.  ^  Such  a  mode  of  amendment,  by 
which  Maryland  herself  made  four  organic  changes  in 
the  eighteenth  century,  without  calling  a  convention 
at  all,  is  seen  to  eliminate  the  direct  sanction  of  the 
voter.  But  when  Connecticut,  New  York,  and 
Massachusetts  made  united  demonstration  about  1820 
in  favor  of  submitting  directly  to  the  people  all 
constitutions  framed  in  convention,  those  States  ini- 
tiated likewise  by  co-operation  the  popular  reference 
of  specific  amendments. ^  Each  of  these  three  States 
at  that  time  improved  upon  the  old  Maryland  plan  of 
1776  (which,  like  our  Federal  plan,  dispensed  with 
conventions  for  mere  amendment)  by  requiring:  (1) 
proposal  of  the  change  by  one  legislature;  (2)  re- 
newed proposal  by  a  succeeding  legislature ;  and  (3) 
final  approval  of  the  change  by  a  majority  vote  of  the 
l^eople.  And  this,  with  occasional  slight  variations, 
may  be  considered  the  modern  American  mode  still 
in  vogue  for  changing  a  State  constitution  in  si^ecific 
particulars  where  no  convention,  no  rewritten  docu- 
ment of  government,  is  thought  desirable. 

Thus,  then,  after  the  United  States  had  fulfilled  a 
third  of  their  nineteenth-century  orbit,  and  emerged 
into  the  full  splendor  of  confident  democracy,  new 
constitutions  and  even  amendments  to  existing  instru- 
ments, whether  initiated  by  convention  or  legisla- 
ture, drew  their  vital  breath,  not  from  representatives 
of  the  people,  but  from  the  final  sanction  of  a  popular 

1  Supra,  page  49. 

^  Cf.  Alabama's  constitution  of  1819  on  this  point,  similar  but  less 
explicit. 


FUNDAMENTAL  ADOPTION  215 

majority  at  the  polls.  All  State  constitutions,  in 
fact,  since  1835,  have  been  thus  established  as  matter 
of  course,  with  the  rarest  of  exceptions.  ^  A  New 
York  convention  in  1846  invoked  such  political 
approval  of  its  work,  though  the  previous  constitu- 
tion had  not  literally  required  any  test  of  the  kind. 
Even  in  Florida  (1838-39)  the  constitution  under 
which  that  territory,  once  Spanish,  became  by  1815  a 
State,  was  submitted  by  schedule  to  its  voting  inhab- 
itants. The  people  of  Wisconsin  territory  rejected 
summarily  the  organic  instrument  prepared  for  State 
admission  by  a  convention  in  1846,  and  accepted  a 
later  one  in  1848.  Rhode  Island's  constitution  of 
1842,  the  date  when  the  last  of  our  primitive  United 
States  cast  off  its  colonial  charter,  was  a  peculiar  one 
in  many  respects,  having  an  English  flavor  of  local 
customs ;  and  a  majority  vote  at  the  polls  gave  this 
new  instriiment  validity,  though  no  amendment  was 
to  take  effect  in  the  future  without  a  three-fifths 
popular  assent.  During  the  busy  decade  of  constitu- 
tional change  which  preceded  Civil  War,  this  funda- 
mental submission,  whether  in  State  or  territorj^  in 
old  or  new  jurisdictions,  had  become  so  sacred  that 
while  the  Free-Soil  controversy  raged  hottest  on  the 
territorial  soil  of  Kansas,  a  fair-minded  majority  in 
Congress,  sustained  by  the  public  opinion  of  both 
sections,  united  in  refusing  recognition  to  a  constitu- 
tion which  in  1858  a  territorial  convention  had  sought 
arbitrarily  to  ordain  as  the  price  of  statehood;  and 
submission  to  a  territorial  vote  being  thus  compelled, 
the  instrument  was  buried  in  ignominy. 

So,    too,    has   it   been    with   State    constitutional 

1  It  appears  that  Arkansas  was  admitted  as  a  State  in  1830  with  a 
constitution  promulgated  simply  by  the  convention  which  framed  it, 
harmonizing  in  that  respect  with  Missouri's  neighboring  action  in  1820 
under  a  constitution  quite  similar.  Kecent  exceptions  in  States  where 
unpopular  change  is  contemplated  are  noted  siqira,  page  211, 


216  CONSTITUTIONAL  STUDIES. 

amendments  wherever  this  later  period  has  given 
opportunity  for  regulating  anew  the  amendment 
methods.  The  Arkansas  constitution  of  1836,  Ly 
way  of  solitary  exception,  embodied  the  old-fashioned 
scheme  of  leaving  all  changes  to  be  wrought  out 
completely  in  successive  legislatures.  ^  Elsewhere 
each  new  or  remodelled  State  constitution  required 
all  new  amendments  to  be  submitted  to  a  popular 
vote.  "Each  amendment,"  says  in  effect  the  New 
Jersey  instrument  of  1844,  "  shall  be  distinctly  pre- 
sented for  vote,  and  no  amendment  oftener  than  once 
in  five  years."  American  State  practice  to  tliis  day 
prefers  that  amendments  shall  originate  in  the  Legis- 
lature, and  pass  both  houses  by  some  fractional  vote 
greater  than  a  quorum  majority.  Usually,  perhaps, 
a  second  legislature  must  after  a  similar  vote  con- 
firm the  proposition ;  but  in  either  case,  a  referendum 
at  the  polls  settles  finally  the  fate  of  the  proposed 
organic  alteration. 

Once  more,  as  a  sign  of  increased  deference  to  the 
people,  we  find  our  modern  State  constitutions  ex- 
pressly providing  that  the  people  shall  not  only  vote 
upon  the  organic  product  of  any  future  convention, 
but  upon  the  preliminary  question  wliether  any  con- 
vention shall  be  held  in  the  State  at  all.  New  York 
in  1846,  liberally  favoring  the  inherent  control  of 
republican  government  l)y  tlie  people  for  the  people, 
declares  that  every  twentieth  year,  as  well  as  at 
intervening  times  wlien  tlie  Legislature  may  provide, 
the  people  shall  vote  whether  to  hold  a  convention 
or  not,  and  the  decision  of  the  majority  shall  prevail 
on  that  point.  That  policy  has  l)een  followed  else- 
where with  excellent  effect.^     Other  States,  however, 

*  Here,  again,  Arkansas  stood  by  tlie  example  suiiplied  in  1820  hy 
its  neighbor,  Missouri. 

2  See,  e.g.,  Ohio's  constitution  of  1851,  tliat  of  Kansas,  1859,  and 


FUNDAMENTAL  ADOPTION.  217 

more  conservative  on  that  point,  still  prefer  specific 
amendraenty,  by  initiation  in  the  Legislature,  to  any 
such  radical  disturbing  influence  as  a  remodelling 
convention.  But  conventions  themselves  choose 
often  to  propose  amendments  rather  than  draft  the 
whole  fundamental  law  anew.  The  Illinois  conven- 
tion of  1848  broke  up  its  work  into  parts  for  separate 
submission,  as  New  York  and  other  States  have  since 
done,  with  good  effect,  in  order  that  the  rejection  at 
the  polls  of  some  doubtful  propositions  might  not 
prevent  a  legal  acceptance  of  the  worthy  residue.  ^ 

It  would  be  interesting  to  consider  how  far  funda- 
mental conditions  expressed  in  any  sovereign  consti- 
tution as  irrepealable  can  have  binding  force  upon 
posterity.  Such  conditions  as  recognize  the  Union 
paramount  may  be  thought  obligatory  enough  with- 
out any  State  expression,  and  all  such  conditions  in 
a  government  are  understood  to  be  subject  to  the 
right  of  revolution.  But  other  provisions  expressly 
declared  unamendable  or  irrepealable  may  be  found, 
not  in  the  original  Federal  instrument  alone  and 
those  of  original  States, ^  but  regularly  upon  the 
admission  of  new  States  to  the  Union  formed  out  of 
the  national  territory  by  way  of  a  compact  with 
Congress.^  A  compact  to  be  legally  repealed  requires 
the  assent  of  both  parties ;  but  no  such  compact  exists 

Maryland's  in  18G7.  To  snch  jjrovision  wc  owe  some  excellent  changes 
iu  New  York's  fundamental  law. 

^  Durini^  the  ten  years  which  j)reccdod  our  Civil  War  tlie  politicnl 
convenience  of  taking  the  sense  of  tlie  people  separately  upon  doulttfiil 
propositions  became  obvious  when  new  States,  such  as  Kansas,  Oregon, 
and  Minnesota,  were  to  be  admitted. 

'^  Sec  supra,  pages  49,  187. 

2  Such,  for  example,  by  way  of  compact  with  the  Union,  as  these : 
never  to  tax  the  lands  of  non-residents  higher  than  those  of  State  resi- 
dents ;  and  that  local  and  adjacent  waters  shall  be  a  common  highway 
for  the  whole  Union,  etc. 


218  CONSTITUTIONAL   STUDIES. 

between  the  present  people  of  a  State  or  nation  and 
their  own  posterity,  and  mutual  repeal  in  such  a  sense 
is  as  impossible  as  mutual  establishment.  No  human 
ordinance  can  rightfully  claim  perpetual  fulfilment. 

To  take  American  institutions  in  their  latter-day 
sense  ai")d  throughout  this  renovated  Union,  now 
happily  in  normal  working  order,  the  State  constitu- 
tion is  become  practically  a  law  which  the  people 
make  directly  by  voting  at  the  polls  upon  a  draft 
submitted  to  them;^  meaning  by  this,  however,  an 
enactment  fundamental  and  obligatory  upon  all  State 
departments,  legislature,  executive,  and  judiciary, 
save  as  to  possibly  transcending  the  supreme  Federal 
constitution.  Hence  it  becomes  to  this  extent  a 
direct  exercise  of  popular  sovereignty,  a  government 
by  plebiscitum.  While  our  Federal  constitution  still 
can  only  be  amended  by  three-fourths  of  the  States 
ratifying  after  the  old  method  of  separate  convention 
or  legislature  (in  practice  the  latter,  as  Congress 
has  hitherto  exercised  its  option),  ^  and  there  is  no 
plebiscitum,  no  polling  of  the  wdiole  United  States  at 
all,  a  State  constitution  may  usually  be  changed  by 
a- bare  majority  vote  at  the  polls,  however  small, 
after  the  two  legislatures  in  succession,  or  (as  in 
some  instruments),  a  single  legislature  has  put  the 
proposed  amendment  before  the  people.^  The  last 
"Council  of  Censors,"  with  authority  to  call  conven- 
tions or  amend,  has  vanished  from  the  States.*  And 
in  the  lengthy  constitutions  with  inflcxiljlc  regulation 
on  matters  liable  to  fluctuating  opinion,  which  now 
so  often  confront  us,^  conventions  show  some  of  the 

^  See  Bryce's  Commonwealth. 
2  Supra,  ])age  186. 

8  The  requirement  of  a  miuimnm  number  of  votes  cast  seems  a  fair 
one  for  fiuulamental  changes.     And  sec  Delaware  (18.31). 
*  See  Vermont's  amendment  (1870)  to  constitution  of  1793. 
^  Among  examjdes  of  growing  verbosity  taken  at  random  from 


FUNDAMENTAL  ADOPTION.  219 

temporizing,  lobbying,  and  log-rolling  propensities 
which  they  criticise  as  follies  in  a  legislature.  The 
people  of  a  State  choose  the  convention,  but  members 
of  that  body  are  tlie  architects  and  joiners  of  the  new 
organic  framework.  All  this  points  in  favor  of  mak- 
ing concrete  submission  of  a  new  scheme  by  separate 
propositions  where  there  is  uncertain  sentiment ;  and 
in  favor  of  proposing  an  occasional  amendment,  as 
far  as  possible,  in  preference  to  holding  conventions 
at  all.  For  all  this  makes  the  people  more  nearly 
the  originators  of  their  own  system.  The  public 
mind  does  not  readily  grasp  the  full  purport  of  a 
complete  instrument  de  novo,  nor  balance  the  prob- 
able evils  against  the  probable  advantages;  but  it 
seizes  readily  upon  specific  corrections  of  specific 
evils,  illustrated  by  some  actual  state  of  facts  which 
has  just  aroused  the  common  interest.  Instead  of 
being  eager  to  summon  conventions  and  re-enact  the 
whole  body  of  fundamental  law,  our  people  have 
generally  proved  conservative  and  slow  to  act,  except 
in  plain  emergencies.  _ 

State  constitutions  by  no  means  the  latest,  we  find  Pennsylvania's  in- 
strument of  1873  occupying  twenty-three  pages  of  print  against  ten  in 
that  of  1838;  Maryland's,  of  1867,  with  thirty-two  against  twenty-one 
in  that  of  1851  ;  and  Missouri's,  of  1875,  with  thirty -three  against  fifteen 
in  that  of  1820.  The  magnitude  of  new  su])jects  for  public  attention, 
such  as  railways,  manufactures,  and  municipal  government,  largely 
accounts  for  such  a  growth.     See  supra,  page  210. 


III. 

STATE  FUNDAMENTAL  MAXIMS. 

Of  State  fundamental  maxims  in  the  nature  of  a 
declaration  of  rights,  those  first  familiar  through  the 
Revolutionary  instruments  of  Virginia,  Pennsylvania, 
Maryland,  and  other  members  of  the  original  Confed- 
eration have  left  their  lasting  impression  in  Amer- 
ica. The  sacred  formulas  in  the  preamble  of  our 
Declaration  of  Independence  find  like  recognition, 
besides  those  with  dispersed  lustre  in  the  original 
text  of  the  Federal  constitution,  or  blazoned  together 
as  its  first  ten  amendments.  Political  truths,  like 
those  in  the  Revolutionary  declarations  of  rights, 
gained  double  circulation  and  credit  in  the  land  when 
stamped  as  the  new  coinage  of  the  Union.  These 
bosom  truths  need  here  no  repetition. ^  In  one  form 
of  statement  or  another,  and  with  variations  of  expres- 
sion suggested  by  time  and  circumstances,  they  are 
to  be  found  in  all  succeeding  constitutions,  whether 
of  old  or  new  States;  most  American  commonwealths 
still  choosing  to  devote  in  their  organic  code  a  special 
chapter  to  such  recital.  But  of  basic  State  maxims 
originating  since  1789  it  is  hard  to  draw  out  any 
catalogue ;  and  the  more  so  because  States  in  recent 
years  have  taken  so  greatly  to  limiting  specifically 
the  range  of  legislative  or  judicial  authority  in  pro- 
hibitions wliich  themselves  might  often  be  thought 
tantamount  to  formulas  of  good  government.     For 

1  See  supra,  page  30. 


STATE  FUNDAMENTAL  MAXIMS.        221 

whenever  a  people  safeguard  their  individual  rights 
against  public  action  in  one  department  of  sovereignty 
or  anotlicr,  then  in  a  sense  one  may  say  that  the  "  bill 
of  rights  "  maxim  finds  expression.  With  this  caveat^ 
let  us  enter  upon  the  task  of  a  brief  enumeration, 
favoring  most  as  fundamental  maxims  those  which 
constitution  builders  have  set  apart  in  that  category. 

The  Montesquieu  separation  of  threefold  powers  is 
still  inculcated  constantly  in  American  State  consti- 
tutions ;  nor  has  modern  civil  experience  devised  any 
radical  departure  from  that  method  for  carrying  on 
popular  government.  Among  the  few  formulas  first 
derived  from  Federal  example  and  the  constitution 
of  1787,  we  may  note  with  satisfaction  the  spread 
among  States  of  that  which  forbade  laws  impairing 
the  obligation  of  contracts.  The  right  of  petition, 
on  the  other  hand,  embodied  by  amendment  only  in 
this  Federal  instrument,  spread  into  continental 
acceptance  through  State  example.^  Everything 
ranged  under  the  head  of  "  great  and  essential  prin- 
ciples of  liberty,"  says  the  Pennsylvania  instrument 
of  1790  for  better  assurance,  "  is  excepted  out  of  the 
general  powers  of  government,  and  shall  remain  for- 
ever inviolate."  Perhaps  the  earliest  grand  idea  to 
propagate  vigorously  in  this  new  eia  of  complete 
Union  was  that  (already  advanced  by  Pennsylvania  2) 
which  abolished  all  imprisonment  for  debt  where  the 
debtor  in  good  faith  gave  up  whatever  property  he 
had,  —  a  doctrine  which  Vermont,  Kentucky,  and 
Georgia  all  announced  by  constitution  in  the  eigh- 
teenth century,  and  which  under  statute  or  funda- 
mental law  is  since  the  doctrine  of  the  whole  United 
States. 

1  Pennsylvania  and  Massachusetts,  supra,  page  35.  PennKjlvauia's 
instrument  of  1790  once  more  included  Penn's  colonial  clause  as  to 
deodands  and  suicides.     See  page  3.5. 

2  Page  36. 


222  CONSTITUTIONAL  STUDIES. 

An  accused  person  acquitted  shall  pay  no  costs 
unless  the  majority  of  judges  certify  that  there  was 
probable  cause  for  prosecution.^  Banishment  as  a 
State  punishment  is  prohibited;  and  so  is  corporal 
chastisement  for  civilians. ^  Indiana  announced  by 
1816  that  a  man's  "particular  services,"  as  well  as 
his  property,  should  not  be  taken  without  "  just  com- 
pensation," —  a  maxim,  by  the  way,  to  which  Ohio  in 
1802  had  given  a  novel  turn  from  the  stand-point 
of  public  advantage.^  Illinois  in  1818  mingled  with 
the  familiar  recital  of  other  private  rights  that  of 
reserving  commons  forever  to  the  people,  meaning 
by  commons  lands  that  were  once  granted  in  common 
to  any  town  or  community  by  competent  authority.^ 
Truth  as  to  the  facts  shall  be  an  admissible  defence 
in  all  libel  suits. ^ 

While  the  new  national  tendency  was  steadily  to 
dispense  with  special  qualifications  for  civil  office  or 
the  Legislature,  tenure  of  office  for  life  or  for  good 
behavior,  even  in  the  case  of  judges,  became  gradu- 
ally obnoxious  to  public  sentiment,  as  the  newer  con- 
stitutions gave  expression ;  Virginia  herself  extending 
to  the  judiciary  by  1850  the  "return  into  that  body 
from  which  they  were  originally  taken,"  and  the 
election  test  "at  fixed  periods"  to  which  the  legisla- 


1  Delaware,  1792. 

-  Oliio,  1802.  Delaware  (1897)  alone  retains  the  antiquated  pillory 
and  whipping-post.  Flogginj^  in  tlic  army  or  navy  or  tlic  merchant  ser- 
vice has  been  a  snbject  for  later  repression  l)y  Congressional  enactment. 

■*  Private  property  shall  always  be  subservient  to  the  public  welfare, 
provided  just  compensation  be  given. 

*  See  constitution  of  1848,  permitting  a  legal  division  of  such  com- 
mons by  suitable  procedure  in  the  courts. 

5  Mississippi,  1817  and  18.32.  New  York  and  other  leading  States 
made  such  a  change  in  tlie  common  law  of  libel  by  simple  legislation 
early  in  the  century.  "Unless  ymblished  from  malicions  motives"  is 
the  prudent  qualification  of  Rhode  Island's  constitution  (1842)  and 
that  of  some  other  States. 


STATE  FUNDAMENTAL  MAXIMS.      223 

tive  and  executive  departments  alone  were  declared 
subject  in  her  famous  declaration  of  1776.^  Missis- 
sippi had  much  earlier  proclaimed  as  the  universal 
tenure  of  State  office  some  limited  period  of  time, 
provided  good  behavior  shall  continue  so  long. 2 
"  No  oilice  shall  be  created  of  longer  tenure  than  four 
years,"  is  the  rigorous  rule  which  Indiana  proclaimed 
in  1851 ;  and  yet  while  holding  to  the  older  American 
prohibition  of  more  than  one  lucrative  office  at  a 
time  in  the  same  individual,  this  Indiana  convention 
made  stated  exceptions  in  a  few  deserving  instances. 
No  lieutenant-governor,  declares  the  Michigan  con- 
stitution of  1851,2  shall  be  eligible  to  any  office  or 
appointment  from  the  Legislature,  except  he  be 
chosen  to  the  United  States  Senate.  ProjDerty  and 
religious  qualifications,  whether  for  office  or  the  right 
of  suffrage,  were  now  disappearing.  Extra  compen- 
sation for  public  officers  or  contractors  was  sometimes 
jealously  forbidden,  and  public  salaries  were  ordered 
paid,  without  increase  or  diminution  during  the 
incumbent's  term  of  office.^ 

As  our  nineteenth  century  nears  its  meridian,  we 
see  stronger  safeguards  than  before  insisted  on  for 
individual  security  against  judicial  process.  "The 
writ  of  habeas  co^yus  shall  in  no  case  be  suspended," 
observes  that  Vermont  constitution  of  1836,  which 
establishes  tardily  a  legislature  of  two  houses. 
Writs  of  error  shall  never  be  prohibited  by  law.^ 
Criminal  indictments  must  be  framed  for  prosecution, 
and  no  one  shall  be  compelled  to  criminate  himself.^ 
For  the  trial  of  criminals  by  peers  and  a  jury,  the 

1  Supra,  page  37. 

2  Mississippi,  1832. 

8  With  perhaps  the  fresh  recollection  of  some  specific  abuse. 

*  Wisconsin,  1848.     See  VIII.,  pos<. 

6  Wisconsin,  1848. 

6  Cf.  U.  S.  Const.,  Amendment  V. 


224  CONSTITUTIONAL  STUDIES. 

common  law  fairly  retained  its  magtia  charta  sanctity; 
but  as  to  civil  litigation  some  of  the  former  reverence 
faded.  "  Jury  trials  may  be  waived  by  agreement  in 
civil  cases,"  is  the  new  maxim  of  various  State  con- 
stitutions :  ^  "  in  civil  suits  not  over  fifty  dollars  "  is 
another  experimental  change,  the  Legislature  may 
authorize  trial  by  a  jury  of  six  men.^  "In  all  crimi- 
nal cases,"  declares  Indiana's  constitution  in  1851 
somewhat  vaguely,  "  the  jury  shall  have  the  right  to 
determine  both  the  law  and  the  facts."  Oath  or  affir- 
mation shall  be  such  as  most  consists  with  binding 
the  individual's  conscience.^  No  person  arrested  or 
confined  in  jail  shall  be  treated  with  unnecessary 
rigor.  No  court  shall  be  secret.  "  No  person  shall 
be  incompetent  as  a  witness  by  reason  of  his  religious 
belief  "  is  a  maxim  of  the  New  York  constitution  of 
1846,  soon  to  be  adopted  elsewhere,  as  amplifying 
religious  liberty  of  conscience,  already  an  accepted 
rule.  Amendments  of  the  Federal  constitution  for 
protecting  those  accused  of  crime  find  an  increasing 
State  acceptance.  "No  imprisonment  for  debt" 
becomes  now  an  unqualified  State  assertion;*  and 
more  than  this,  a  new  privilege  develops  in  the 
legal  exemption  from  seizure  and  attachment  (since 
nearly  universal)  of  a  certain  reasonable  amount  of 
property  for  every  debtor,  "that  he  may  enjoy  the 
necessary  comforts  of  life."^  California  in  1849 
specified  homestead  exemptions  for  heads  of  families ; 
and  recognizing  the  new  conflict  now  waging  in  the 
Atlantic  State  legislatures  for  married  women's 
rights,  though  not  without  a  Spanish-American  pre- 

1  New  York,  1846;  California,  18t0.     Contra,  Illinois,  184S. 

2  New  Jersey,  1844.     North  Dakota's  constitution  ( 1889)  allows  of  a 
verdict  by  nine  jurors. 

"  Indiana,  1851. 

*  Wisconsin,  1848;  Texas,  1845.     Cf.  page  221. 

6  "Wisconsin,  1848. 


STATE  FUNDAMENTAL  MAXIMS.       225 

disposition  to  the  civil  law  of  matriinoiiiul  matters, 
that  earliest  of  Pacific  States  sanctioned  by  its 
primitive  constitution  the  wife's  separate  property. 
In  the  cause  of  sound  morals,  duelling  had  by  this 
time  been  fundamentally  forbidden  in  many  States ; 
and  lotteries,  too,  once  so  popular  a  means  of  raising- 
money  for  civil  and  religious  objects.^ 

Among  State  organic  provisions  of  this  middle 
epoch  of  the  century  Avere  several  whose  object  was 
to  break  up  finally  manor  and  patroon  systems  of 
landholding,  such  as  had  lingered  in  New  York, 
to  abolish  feudal  tenures,  and  further  to  discounte- 
nance all  leases  longer  than  a  single  generation.  ^ 
Methods  were  \\o\y  prescribed  for  assessing  damages 
wherever  property  might  be  taken  for  public  uses, 
and  the  tender  of  compensation  was  to  precede  the 
taking.^  Maryland's  early  precept  enjoining  equal 
and  uniform  taxation  was  henceforth  seen  formulated 
in  one  set  phrase  or  another.  Existing  rights  of 
commons,  "fishery  and  the  rights  of  shore,"  found 
also  fundamental  protection.^ 

By  the  middle  of  this  century  bills  of  rights  had 
become  largely  eclectic,  whatever  the  pride  of  a  con- 
vention in  changing  old  phraseology;  new  States 
copied  or  selected  from  other  constitutions  in  force 
in  older  States ;  and  in  one  or  two  instances  of  that 
epoch  maxims  had  been  scattered  through  an  organic 
instrument  without  any  distinct  grouping.''  But  now 
appear   new   and   express   proscriptions    of    race   or 

1  See  various  conctitutions,  1836-1850. 

^  No  lease  beyoi,,!  twelve  years.  New  York,  1846.  No  lease  longer 
than  fifteen  years.  Wisconsin,  1848.  The  law  of  primogeniture  or 
entailments  shall  never  be  in  force.     Texas,  1845. 

3  See  Michigan,  1850.     Cf.  page  .36  ;  Indiana,  1851. 

*  Rhode  Island,  1842.     Cf.  page  36. 

*  See  Michigan,  1850. 

15 


226  CONSTITUTIONAL  STUDIES. 

nationality,  due  to  the  drift  of  political  conflict  for 
the  next  ten  years.  Indiana,  though  always  a  free 
commonwealth,  declares  that  no  negro  or  mulatto 
shall  come  into  the  State ;  ^  while  free  Oregon,  upon 
being  admitted  as  a  State,  pronounced  with  rude 
dogmatism  that  no  negro,  Chinaman,  or  mulatto  ^ 
should  have  the  right  of  suffrage,  and  invited  "  white 
foreigners"  only  as  settlers. ^  To  the  time-honored 
right  of  free  people  to  bear  arms  ^  was  now  annexed, 
in  States  where  deadly  brawls  were  common,  the 
qualification  that  carrj^ing  concealed  weapons  was 
not  to  be  included.^ 

Women's  rights  have  advanced  boldly  in  the 
organic  favor  of  American  States  remote  from  our  old 
Atlantic  slope.  Many  were  the  States,  from  1850 
onward,  that  protected  the  separate  property  of 
married  women  by  constitutional  maxims,  as  Cali- 
fornia had  done,^  while  in  all  the  other  States  legis- 
lation has  come  to  establish  such  a  policy  without 
constitutional  announcement.  And  since  the  Civil 
War  woman's  emancipation,  so  styled,  from  her  com- 
mon-law conditions,  has  progressed  tow^ards  active 
participation  in  a  government  controlled  originally  by 
man  alone,  and  yet  not  to  positive  victory. 

"In  the  words  of  the  Fatlier  of  his  Country," 
quaintly  recites  the  preamble  of  Ilhode  Island's  con- 
stitution in  1842,  "  we  declare  that  the  basis  of  our 
political  systems  is  the  right  of  the  people  to  make 

1  Indiana,  1851. 

2  As  to  Cliiiiese  exclusion,  Oregon  appears  to  have  gained  the  start 
of  California  in  its  organic  law;  and  it  would  appear  from  this  first 
constitution  that  mining  resources  were  anticipated  in  that  northerly 
Pacific  State  beyond  what  ever  became  revealed. 

^  Supra,  page  192. 

*  Kentucky,  1850. 

^  E.  (J.,  Michigan,  Indiana,  Oregon,  Kansas,  during  1850-1 8G0. 
Kansas  in  1859  went  still  fartlier  in  declaring  the  rights  of  husband 
aud  wife  equal  in  the  custody  of  their  children. 


STATE  FUNDAMENTAL  MAXIMS.        227 

and  alter  their  constitutions  of  government,"  but  that 
what  exists  at  any  time  is  obligatory  on  all  till 
changed  by  an  explicit  act  of  the  whole  people. ^ 
Indeed,  the  recognized  American  doctrine,  with 
racial  qualifications,  perhaps,  in  the  slaveholding 
States,  appeared  more  clearly  as  time  went  on  that 
all  power  was  inherent  in  the  people  with  the  right 
fundamentally  to  make  and  alter  whenever  the  public 
good  should  require  it,  —  this  proviso  being  however 
understood,  that  the  government  should  continue 
republican  and  popular  in  form.  Soon  after  the 
downfall  of  human  slavery  in  1865  we  find  maxims 
in  the  State  instruments  of  reorganized  and  border 
States,  formerly  slaveholding,  which  announce  hence- 
forth the  common  faith  of  universal  brotherhood ;  and 
with  a  repudiation  of  all  property  in  man,  repudiat- 
ing also  all  political  distinctions  founded  in  race  or 
color.  Various  States  in  this  new  era  recanted 
formally  the  heresy  of  secession,  and  declared  alle- 
giance to  the  Union  henceforward  as  paramount  to 
all  claims  of  State  sovereignty.^  If  in  this  new 
and  reunited  national  era,  the  latest  of  all,  other 
maxims  of  fundamental  right  are  worth  recording  as 
State  constitutional  expressions,  they  are  suggested 
mostly  by  the  growth  of  wealthy  private  corporations 
or  the  difficult  adjustment  of  municipal  government 
to  the  great  and  growing  cities.  Civil  rights  of  the 
negro  make  an  additional  element.^ 

Except  for  the  racial  obstructions  noted,  aliens 
have  been  liberally  regarded  in   the  United  States 

^  Tlhode  Island  had  just  suppressed  the  Dorr  ■Rebellion. 

2  vSee  South  Carolina,  1868;  Virginia,  1870.  Nevada,  when  ad- 
mitted in  1864  as  a  new  free  State,  had  pronounced  fundamentally 
against  the  secession  theory  while  civil  war  was  raging. 

8  Thus  the  right  of  all  citizens  to  travel  on  the  public  highways  has 
reference  to  discriminations  of  race  and  color  by  common  carriers. 
Mississippi  and  Louisiana,  18C8. 


228  CONSTITUTIONAL   STUDIES. 

for  the  most  part.  But  some  reaction  has  set  in 
against  foreign  ownership  of  lands  and  corporate 
stock,  as  one  or  two  of  the  latest  constitutions 
indicate.  1 

The  enlightened  lead  of  the  old  thirteen  States, 
and  especially  New  England,  in  public  schools  and  a 
liberal  education,  was  not  lost  upon  the  new  States  of 
the  nineteenth  century,  whose  earliest  constitutions, 
Ohio's,  for  instance,  developed  the  same  policy. 
Most  new  States,  in  fact,  formed  out  of  national 
territory,  received  in  succession  from  Congress  when 
admitted  to  the  Union  generous  grants  of  the  public 
land  as  an  endowment  in  the  cause  of  learning. 
Equal  participation  by  the  inhabitants  in  such 
endowed  education,  we  see  expressly  enjoined  in 
Ohio's  first  constitution. ^  These  Congressional  grants, 
for  common  schools  and  a  graded  system  of  education 
capped  by  a  State  university,  Avere  usually  stated  to 
be  in  consideration  of  certain  fundamental  advantages 
promised  to  the  whole  Union  under  the  compact  of 
State  admission;  and  public  library  funds  from  the 
sale  of  public  lots  was  another  stipulation  in  early 
instances. 3  Michigan,  of  the  grand  tier  of  new 
northwestern  States,  broadly  declares  in  1835  by 
fundamental  law  that  the  Legislature  "  shall  encour- 
age, by  all  suital)le  means,  the  promotion  of  intel- 
lectual, scientific,  and  agricultural  imjorovement," 
California  by  1849  employing  a  similar  expression.* 
While  "Native-Americanism  "  swayed  American  poli- 
tics somewhat  later,  the  dread  of  Roman  and  foreign 
influence   appeared   in   State   systems  of  education. 

1  Washinp;ton,  1889. 

2  Ohio,  1802. 

'  See  Indiana,  181C. 

*  This  is  after  the  Massachusetts  example,  set  as  early  as  1783. 
Supra,  page  42. 


STATE  FUNDAMENTAL  MAXIMS.        229 

All  money  raised  by  taxation  for  the  support  of  j)ub- 
lic  schools  was  directed  by  a  Massachusetts  amend- 
ment of  1855  to  be  applied  exclusively  to  schools 
under  legal  and  public  control,  and  not  to  those  of 
any  religious  sect;  ^  and  such  continues  the  American 
rule  to  this  day.  Equality  of  the  sexes  in  public 
education  is  enjoined  in  some  late  constitutions. 
But  various  States,  where  the  white  and  colored 
races  are  largely  blended  in  a  population  now  wholly 
free,  forbid  their  instruction  in  the  same  public 
schools,  and  the  policy  is  to  educate  the  races 
separately.^ 

"No  person,"  declares  Pennsylvania  in  her  consti- 
tution of  1790,  "shall  be  disqualified  from  office  on 
account  of  religious  sentiments  who  acknowledges 
God  and  a  future  state  of  rewards  and  punishments;" 
dispensing  for  the  future  with  belief  in  the  inspira- 
tion of  the  Bible,  the  former  limit  of  toleration.  And 
with  the  da^vn  of  the  nineteenth  century,  the  impulse 
became  resistless  to  adopt  Federal  example,  and  get 
rid  of  religious  tests  for  voter,  office-holder,  or  legis- 
lator. Maryland  by  1810  abolished  all  taxation  for 
the  support  of  religion,  remitting  all  Christian  sects 
to  the  voluntary  plan  of  sustenance.^  Still  earlier 
had  Ohio's  constitution,  which  ushered  in  the  present 
century,  proclaimed  the  right  of  conscience,  the  right 
of  free  worship  to  the  individual,  without  religious 
preference  or  religious  test;  yet  inculcating  further 
in  the  same  connection  that  religion  and  morality 
were  essential  to  society,  and  hence  that  schools  and 

1  See  also  Kansas,  1859.  ■*  1  Bryce,  423. 

^  Much  of  the  American  written  law  by  which  this  voluntary  sys- 
tem became  finally  established  in  the  different  States  depended  upon 
simple  legislation  where  the  State  constitution  itself  had  fixed  no  defi- 
nite standard.  Virginia's  religious  freedom  act,  for  instance,  antedated 
our  Federal  constitution,  and  was  perhaps  the  earliest  legislation  of 
the  kind. 


230  CONSTITUTIONAL  STUDIES. 

common  instruction,  not  inconsistent  with  rights  of 
conscience,  should  forever  be  encouraged.  ^  Such 
Xjrecedents  were  not  lost  upon  Congregational  New 
England.  Connecticut's  bill  of  rights  in  1818 
announced  freedom  henceforward  for  religious  pro- 
fession and  worship,  and  forbade  preference  to  any 
Christian  sect  or  mode  of  worship.  And,  finally, 
Massachusetts,  by  constitutional  amendment,  abolished 
in  1833  her  time-honored  levy  of  parish  taxes,  and  re- 
nouncing the  former  championship  of  "  public  Protes- 
tant teachers  of  piety,"  remitted  all  religious  sects  in 
the  commonwealth  to  their  own  private  devices  for 
raising  money.^  "Free  interchange,  of  thought"  (a 
right  which  should  not  be  abused)  is  commended  in 
some  later  American  instruments.^  It  was  not,  how- 
ever, until  1877  that  New  Hampshire,  by  modernizing 
amendment,  struck  out  her  ancient  test  of  "  Protes- 
tant religion,"  which  discriminated  against  Roman 
Catholics  for  office.  And  atheists  are  still,  or  at 
least  were  recently,  disqualified  from  holding  office 
under  the  fundamental  law  of  a  few  States.*  Ver- 
mont's old  constitution,  moreover,  still  enjoins  fun- 
damentally upon  Christians  the  duty  of  regular  public 
worship  of  some  sort,  and  the  observance  of  the 
Sabbath,  or  Lord's  day.^ 

1  Ohio,  1802. 

2  See  also  Alabama's  1819  constitution  forbidding  religious  tests  for 
office. 

8  Indiana,  1851. 

*  In  four  States  (Arkansas,  Maryland,  North  Carolina,  and  Texas) 
a  man  is  ineligible  to  office  who  denies  the  existence  of  God ;  in  l^enn- 
sylvania  he  is  ineligible  if  he  does  not  lielieve  in  God  and  the  existence 
of  future  rewards  and  ])unisliniciits.  In  Maryland  and  Arkansas  such 
a  person  is  also  incom])Otent  as  a  witness.     See  1  Bryce,  424. 

^  Vermont,  1793.     Of.  Delaware,  18.31. 

Utah's  singular  experience  as  a  Territory  led  to  constitutional  ex- 
pressions unusually  strong  upon  lier  admission  as  a  State  (189.5) ;  there 
should  1)0  no  utn'on  of  cliurcli  and  State,  nor  domination  of  any  church  ; 
polygamous  or  ])lural  marriages  were  forbidden,  etc. 


IV. 

THE  ELECTIVE  FRANCHISE. 

That  admirable  forbearance  which  the  fathers  of 
our  Federal  instrument  displayed  in  leaving  the 
whole  delicate  regulation  of  popular  suffrage  to  the 
several  States  deserves  repeated  mention.  The  new 
system  of  Union  could  hardly  have  been  adopted 
otherwise.  For  the  House  of  Representatives  of  a 
Federal  Congress  it  was  thought  sufficient  to  require 
that  the  choice  of  a  member  from  any  particular  State 
should  be  by  the  same  suffrage  standard  which  that 
State  applied  for  election  to  its  own  most  numerous 
l)ranch  of  the  Legislature.  For  membership  in  a 
Federal  Senate,  as  well  as  in  the  supreme  choice 
of  electors  of  a  Federal  chief  magistrate,  deference 
was  paid  to  the  wisdom  of  each  State  legislature,  — 
that  safe  embodiment  of  representative  authority,  as 
the  earlier  practice  of  modern  republics  regarded  it, 
in  an  aggregation  of  public  men,  wiser  and  more 
trustworthy,  it  was  thought,  than  the  people  whom 
they  represented.  All  this  suited  well  the  temper  of 
confederated  States  in  the  eighteenth  century,  and 
through  the  nineteenth  results  have  continued  on 
the  wliole  satisfactory.  All  discussion,  all  experi- 
ment over  the  extension  of  the  suffrage,  then,  has 
been  conducted  within  separate  State  confines,  except 
perhaps  concerning  negro  suffrage,  which  civil  war 
compelled  the  whole  Union  to  consider  as  in  some 
sense  a  national  problem.     Democracy  and  manhood 


232  CONSTITUTIONAL  STUDIES. 

suffrage  have  gradually  gained  Federal  ascendency, 
through  ascendency  in  the  several  States  Avhere  regu- 
lation is  easier  and  more  elastic.  And  in  the  mean- 
time the  Federal  example  since  1787  of  dispensing 
with  all  religious  or  property  tests  for  participation 
in  civil  government  stirred  quickly  the  States  to 
emulation. 

To  repeat  our  former  statement,  this  Union,  so 
far  as  concerned  the  Federal  form  of  government, 
might  have  developed  into  an  aristocracy;  but  State 
direction  and  State  institutions  have  compelled  it  to 
become  a  democracy. 

This  Federal  Union,  as  we  have  seen,  began  its 
operations  in  1789  as  a  combination  of  States  quite 
conservative  and  somewhat  aristocratic  for  the  most 
part,  showing  the  force  of  Englisli  environment  in 
the  distrustful  qualifications  which  hedged  the  indi- 
vidual right  to  vote.^  But  under  the  sunbeams  of 
enlightened  self-government,  those  qualifications  soon 
began  dispersing  like  a  morning  mist.  The  Federal- 
ists, as  the  earliest  national  party  intrenched  in 
power,  relied  largely  upon  voters  of  property,  upon 
the  socially  influential  in  established  States.  There 
were  property  tests  and  religious  tests  for  electors  and 
candidates  already ;  yet,  partly  through  the  efforts  of 
a  political  opposition,  concessions  soon  appeared  in 
one  constitution  or  another.  Pennsylvania,  with  no 
religious  test  for  the  voter,  dispensed  in  1790  with 
her  former  religious  qualification  to  hold  office. 
South  Carolina,  the  one  State  where  caste  and  cavalier 
prepossessions  stood  tlie  strain  of  democratic  innova- 
tion down  to  the  defiant  strife  of  1861,  abolished 
religious  tests  both  for  voter  and  office-holder  by 
organic  change. ^  Kentucky  in  1799  pronounced  in 
her  constitution  against  religious  tests,  wliether  for 

1  Supra,  page  50.  ^  Supra,  page  44. 


THE  ELECTIVE  FRANCHISE.  233 

voters  or  office-holders,  choosing  the  rule  of  the 
Federal  Union.  Delaware  in  1792  enlarged  the 
franchise  so  as  to  embrace  eveiy  "vhite  freeman" 
of  full  age  and  two  years'  residence  who  paid  a  State 
or  county  tax.  Tax-paying  was  by  the  close  of  the 
eighteenth  century  the  minimum  standard  which 
property  qualification  had  reached  under  the  old 
enlightened  State  example  so  far  as  constitutional 
expression  was  concerned ;  yet  among  the  earliest  of 
new  States,  Kentucky  dispensed  with  even  this  before 
the  century  ended,  as  did  also  Vermont.  Maryland 
in  1810  abolished  all  former  propertv  qualifications, 
whether  for  office-holding  or  voting,  even  to  the  pay- 
ment of  taxes.  That  the  voter  should  be  at  least  a 
tax-payer  was,  however,  much  longer  insisted  upon 
by  most  States.  South  Carolina's  constitution  of 
1790  adhered  to  the  freehold  qualification;  "five 
hundred  acres  and  ten  negroes,"  or  a  real  estate 
valued  at  .£150  sterling  clear  of  debt,  was  the  stand- 
ard set  in  her  organic  lav/. 

Connecticut,  in  her  constitution  of  1818,  favored 
qualifications  of  property,  or  of  militia  duty,  or  of  a 
State-tax  payment  within  a  year.  Massachusetts, 
abolishing  all  freehold  or  property  qualifications  for 
the  voters  soon  after,  clung  still  by  the  poll  tax  for  a 
long  period. 1  Delaware  in  1831  abolished  religious 
and  property  qualifications,  except  as  to  paying  taxes. 
Virginia  in  1830  made  a  technical  enumeration  for 
property  qualification,  having  earlier  left  the  Legis- 
lature largely  to  itself.  The  democratic  tendency 
in  new  States  before  1830  was  towards  dispensing 
with  even  the  tax-paying  qualification,  thus  giving 
freely  the  franchise  and  popular  control  of  govern- 
ment to  numbers  and  not  property. ^     New  York  in 

1  Abolished  finally  in  1891. 

2  Illinois,  1818;  Alabama,  1819;  Missouri,  1820. 


234  CONSTITUTIONAL  STUDIES. 

1821  dispensed  with  its  former  freehold  privileges  in 
voting,  at  the  same  time  specifying  for  the  franchise 
various  requisites  of  taxation,  or  of  service  in  the 
State  militia  or  among  the  firemen.  During  the 
years  1836-1860  the  final  abolition  of  tax-paying  as 
well  as  of  property-holding  requirements  became  very 
marked  in  the  changed  constitutions  of  our  States. 
Yet  there  are  States  which  to  this  day  require  the 
payment  of  a  slight  tax  in  order  to  vote,  while  Rhode 
Island  still  imposes  a  property  qualification. 

A  buoyant  and  increasing  confidence  in  the  unregu- 
lated popular  expression  at  the  polls,  for  city  and 
country  alike,  seems  to  have  culminated  in  America 
about  the  middle  of  this  nineteenth  century.  So 
far  as  white  male  inhabitants  were  concerned,  all  con- 
stitutional change  in  the  States  had  hitherto  tended 
to  so  extend  the  franchise  that  the  poorest  local 
resident  not  a  criminal  nor  a  dependent  pauper 
might  readily  take  part  at  the  polls  with  those  who 
paid  taxes  and  had  a  pecuniary  stake  in  the  govern- 
ment; while  as  for  bribery  and  the  criminal  disquali- 
fication not  unfrequently  denounced  in  organic  law, 
convictions  had  been  rare  and  individual  disfranchise- 
ment by  the  Legislature  still  rarer.  But  now  the 
native-born  began  to  feel  the  evils  of  an  unrestrained 
and  incongruous  migration  from  foreign  lands,  and 
of  that  organized  machine  in  the  largest  cities  which 
too  often  tampered  with  the  ballot-box,  and  induced 
riot  and  corruption  at  the  polling-booths.  Greater 
purity  of  the  ballot,  the  elimination  of  fraudulent 
opportunities,  became  henceforth  a  standing  task  for 
all  good  citizens.  Hitherto  no  educational  test  had 
been  applied  to  the  common  voter;  but  midway  in 
this  present  century  Native  Americanism  asserted 
itself.  "No  elector  shall  be  qualified,"  declared 
Connecticut's  amendment  of  1855  in  substance,  "  who 


THE  ELECTIVE  FRANCHISE.  235 

cannot  read  the  constitution  or  any  statute  of  the 
State;  "  and  Massachusetts  by  1857  confined  the  bal- 
lot to  such  as  could  read  the  constitution  in  the 
English  language  and  write  their  names.  To  such 
constraints  upon  ignorant  suffrage  those  two  common- 
wealths have  ever  since  adhered,  claiming  that  prac- 
tical experience  commends  the  rule,  and  a  few  States 
for  special  reasons  have  lately  joined  them.  This 
reading  and  writing  test  is  not  the  true  one  for  all 
cases,  since  sturdy  and  honest  manual  labor  makes 
better  citizens  than  a  mental  training  perverted. 
Foreigners  may  know  their  native  language,  if  not 
ours,  nor  are  the  illiterate  necessarily  ignorant. 
Nevertheless,  moral  fitness,  though  a  most  desirable 
exaction,  can  only  be  tested  by  judicial  conviction 
for  crime,  and  an  approximate  organic  satisfaction  is 
better  perhaps  than  none  at  all. 

Meanwhile  various  other  constitutions  of  the  decade 
1850-1860  are  seen  prescribing  to  one  extent  or 
another  a  registration  system  in  the  growing  centres 
of  population,  so  as  to  reduce  the  danger  of  false 
and  repeated  personation  at  the  polls ;  ^  and  such 
safeguards  will  increase  with  time  rather  than 
diminish. 

The  new  State  of  Kentucky  ordained  that  elections 
should  last  for  three  days  at  the  request  of  any  can- 
didate; and  new  Tennessee  followed  by  prescribing 
two  consecutive  days.^  The  eighteenth  century  was 
then  near  its  close.  Likely  enough  a  similar  usage 
had  existed  previously  in  Virginia  or  North  Carolina. 
But  the  mischiefs  of  frequent  and  prolonged  elections 
have  since  impressed  our  people;  and  by  1861  and 
the  era  of  the  Civil  War,  elections  were  almost  uni- 

1  Virginia,  1850;  Louisiana  (as  to  New  Orleans),  1852;  Rhode 
Island,  1854. 

2  Kentucky,  1792,  1799;  Tennessee,  1796. 


236  CONSTITUTIONAL  STUDIES. 

versally  confined  by  State  organic  law  to  a  single 
day,  each  newly  admitted  member  of  the  Union  favor- 
ing that  principle.  To  separate  civic  from  State 
elections  is  held  desirable  in  these  later  days;  so, 
too,  where  possible,  in  alternate  years,  to  separate 
the  great  State  contests  from  the  national. 

That  controversy,  as  between  the  ballot  and  viva, 
voce  modes  of  voting,  whose  origin  we  have  already 
remarked,^  continued  far  into  the  nineteenth  century. 
Georgia  in  1789,  Pennsylvania  and  South  Carolina 
in  1790,  Kentucky  in  1792,  Vermont  in  1793,  Ten- 
nessee in  1796,  each  in  turn  gave  fundamental  prefer- 
ence to  the  modern  ballot.  But  Kentucky,  veering 
in  her  opinion,  changed  from  the  ballot  in  1799  to 
viva  voce.,  siding  in  practice  apparently  with  the 
mother  State,  Virginia,  whose  course  had  been 
defined  by  statute  discretion.  Georgia's  change  of 
mind  was  somewhat  similar. ^  And  thus  stood  the 
issue  at  the  close  of  the  last  century. 

Since  then  the  use  of  the  ballot  under  State  funda- 
mental law  has  advanced  steadily  towards  universal 
acceptance  throughout  the  Union.  ^  Original  States, 
like  New  York  and  Maryland,  which  had  once  ex- 
perimented with  the  viva  voce  method,  abandoned  it 
forever.*     And  the  fair  distinction  drawn  in  1790  by 

1  Supra,  page  51.  In  Dr.  Cortlaudt  F.  Bishop's  History  of  Elec- 
tions in  the  American  Colonics  (III.  Columbia  College  Historical 
Studies,  No.  1),  it  is  shown  that  proxy  voting  prevailed  very  early  in 
]\Iassachusetts  and  adjacent  colonies,  and  that  traces  of  tliis  practice 
remained  in  Connecticut's  early  election  laws  down  to  1S19,  when  her 
charter  Avas  superseded.  This  mode,  as  in  private  corporations,  sug- 
gests a  possible  origin  of  the  American  ballot.     See  pages  50,  51. 

2  Georgia's  constitutions  of  1777  and  1789  had  favored  tlie  ballot* 
hut  that  of  1798  required  tlie  electors  to  vote  viva  voce,  in  all  poi)ular 
elections  until  the  Legislature  should  direct  otherwise. 

3  See  Ohio,  1802;  Louisiana,  1812;  Connecticut,  1818. 

4  Maryland,  1810;  New  York,  1821. 


BALLOT  AND    OEAL    VOTING.  237 

Pennsylvania's  constitution  is  seen  recognized  in 
various  other  State  instruments  framed  previous  to 
1850,  —  that  all  elections  shall  be  by  ballot  except 
those  by  legislators,  who  shall  vote  viva  voce.  For 
those  in  public  station  ought  to  be  held  by  constit- 
uents to  their  public  responsibilities  and  be  judged 
by  the  record,  while  to  the  voter  an  honest  indepen- 
dence, as  among  candidates,  is  the  chief  essential. 

But  while  the  method  of  voting  remained  debat- 
able, we  see  in  the  various  conventions  of  new  States 
of  the  Mississippi  valley  a  disposition  either  to  com- 
promise or  evade  the  present  issue.  Mississippi  in 
1817,  at  her  admission,  ordained  that  the  first  State 
election  should  be  by  ballot,  and  all  future  elections 
"regulated  by  law;"  Alabama  in  1819  that  all  elec- 
tions should  be  by  ballot  until  the  Assembly  directed 
otherwise;  and  Indiana  in  1816,  earlier  than  either, 
that  all  popular  elections  should  be  by  ballot,  pro- 
vided that  the  Legislature  might,  if  thought  expe- 
dient, change  in  1821  to  the  viva  voce  plan,  after 
which  time  the  rule  should  remain  unalterable.  All 
such  dexterous  political  expedients  seem  to  have 
ended,  as  they  ought,  in  establishing  permanently  for 
each  State  concerned  the  written  or  printed  ballot. 
But  Illinois,  on  the  contrary,  put  the  burden  of  proof 
upon  advocates  of  the  ballot,  just  as  Georgia  had 
done  in  1798;  her  new  constitution  of  1818  or- 
daining that  all  votes  should  be  given  viva  voce 
until  the  Legislature  enacted  otherwise.  Even  such 
subterfuges  could  not  avoid  destiny,  for  in  1818 
Illinois  permanently  established  the  ballot  under  a 
new  State  constitution.  Georgia  made  apparently 
no  change  before  1861,  whatever  might  have  been 
the  legislative  action.  Missouri's  convention  in  1820 
seems  to  have  evaded  the  issue  altogether;  while 
Arkansas  in  1836  gave  clear  preference  to  viva  voce, 


238  CONSTITUTIONAL  STUDIES. 

just  as  Illinois  had  done  when  fii'st  entering  upon 
statehood.  The  tendency  of  the  century  had  now 
hecome  unmistakable  for  taking  each  popular  vote  by 
ballot;  and  Michigan's  concession  to  the  contrary  in 
1835,  that  township  officers  might  be  elected  viva 
voce,  marks  the  extreme  limit  for  suffrage  by  voice 
and  a  show  of  hands,  so  far  as  American  practice 
permanently  shaped  out  elections  by  the  people. 

Down  to  the  Civil  War,  how^ever,  while  States 
such  as  we  have  mentioned  might  be  thought  doubt- 
ful  in  their  dissent  from  the  ballot,  Virginia  and 
Kentucky  stood  sturdilj^  together  to  resist  the  gather- 
ing sentiment  of  sister  States.  And  in  the  appeal  to 
unflinching  manliness  at  the  polls  these  two  States 
insisted  that  every  voter  should  show  at  the  hustings 
the  courage  of  his  personal  conviction.  Custom  and 
statute  law  seem  to  have  fixed  early  the  viva  voce 
standard  for  the  Old  Dominion,  though  her  organic 
law  down  to  1830  was  silent  on  the  subject.  But 
Virginia's  new  constitution  of  that  year  gave  to  the 
filial  Kentucky  a  pronounced  support,  by  the  declara- 
tion that  "in  all  elections"  to  any  office  or  place  of 
trust,  honor,  and  profit,  the  votes  "shall  be  given 
openly  or  viva  voce,  and  not  by  ballot."  And  once 
again  in  1850,  the  emphatic  and  somewhat  humorous 
expression  of  Kentucky's  constitution,  a  few  months 
earlier,  was  duplicated  in  the  new  Virginia  document 
of  that  year,  that  "in  all  elections,"  whether  by  the 
people  or  the  Legislature,  "the  votes  shall  be  per- 
sonally and  publicly  given  viva  voce,  provided  that 
dumb  persons  entitled  to  suffrage  may  vote  by 
ballot."  All  this,  however,  won  no  more  proselytes, 
for  by  this  time  all  new  States  of  the  Union  favored 
successively  the  ballot  in  their  written  constitutions ; 
and   while  the  Civil   War  progressed,   a  decade  or 


BALLOT  AND    ORAL    VOTING.  239 

more  later,    Virginia  recanted  such  views  and  con- 
formed to  American  practice.^ 

State  reconstruction  following  the  Civil  War  com- 
pleted the  organic  triumph  of  the  ballot-box  through- 
out the  United  States.  But,  free  from  all  military 
coercion  in  her  organic  institutions,  Kentucky  seems 
to  have  kept  longest  to  the  old  method.  In  1891, 
however,  her  constitution,  too,  was  remodelled;  and 
one  clause  of  that  instrument  expressly  declares  that 
all  elections  by  the  people  shall  be  by  "  secret  official 
ballot."  This  full  phrase  sanctions  the  improved 
method  of  voting  which  our  latest  generation  has 
adopted.  Instead  of  the  manifold  private  and  partisan 
ballots  once  pressed  upon  each  voter  by  rival  canvas- 
sers at  the  polls,  we  now  have  in  nearly  every  State, 
and  as  part  of  the  organic  law  where  new  State  con- 
stitutions or  amendments  dispose  of  the  subject,  an 
official  ballot  after  what  is  known  as  the  "  Australian 
plan,"  publicly  printed  and  prepared,  on  which  appear 
the  names  of  all  party  candidates  for  the  voter's 
own  secret  mark  of  preference.  A  system,  in  short, 
which  guards  better  than  ever  before  the  individual's 
choice  and  his  personal  freedom  from  corrupt  and 
insidious  temptation  is  the  American  suffrage  reform 
which  signalizes  the  last  decade  of  the  nineteenth 
century. 

Growing  evils  of  machine  politics  and  demagogism 
are  met  by  numerous  provisions  in  State  constitutions 
of  the  past  forty  years,  whose  main  object  is  to  pre- 
serve at  all  hazards  the  purity  of  the  ballot-box  and 
the  rights  of  each  honest  voter.  Hence  are  found 
many  details  over  ballot  methods,  registration,  and 

1  Virginia  and  West  Virginia,  1863-1864.  Every  voter  shall  he 
free  to  nse  an  open,  sealed,  or  secret  ballot  as  he  may  elect.  West 
Virginia,  1872. 


240  CONSTITUTIONAL  STUDIES. 

the  appointment  of  inspection  officers  to  prepare  and 
revise  voting  lists,  especially  in  the  large  cities.  ^ 
Those  kept  at  asylums  or  prisons  at  the  public 
expense  are  forbidden  to  vote,  while  bribery  or  intimi- 
dation at  the  polling  places,  and  all  false  personation, 
are  crimes  severely  denounced  for  punishment,  and 
lit  reason,  moreover,  for  depriving  one  of  the  rights 
of  elector. 2 

A  certain  brief  period  of  local  residence  is  usually 
made  indispensable  to  adult  suJS'rage;  such,  for  in- 
stance, as  a  residence  within  the  State  for  two  j^ears 
and  within  the  town  half  that  time.  One  must,  at 
all  events,  according  to  our  State  constitutions,  vote 
only  at  the  place  where  he  resides;  and  within  the 
first  half  of  this  century  local  residence  for  both  voter 
and  representative  candidate  became  strongly  insisted 
upon,  as  it  has  been  ever  since. ^ 

Various  organic  provisions  of  a  miscellaneous  char- 
acter qualify  the  right  to  vote.  Thus  South  Carolina 
in  1810  expressly  excluded  non-commissioned  officers 
of  the  United  States  from  such  exercise.  Sailors 
and  seminary  students  neither  gain  nor  lose  a  voting 
residence  by  their  casual  presence.*  State  suffrage 
has  been  usually  confined  to  the  native-born  and  to 
those  naturalized  under  the  laws  of  the  United  States, 
except  for  residents  in  the  last  century  during  the 
Revolution,    or  when  the    Federal  constitution  was 

1  See  Now  York,  1894,  providing  for  registration  lists  and  a  bipar- 
tisan election  board. 

2  See  for  such  details  the  constitutions  of  Maryland  (18G7),  Mis- 
souri (1875),  Colorado  (1876),  and  New  York  (amendments  of  1894). 
A  few  States  have  shown  a  fundamental  dislike  to  registration  provi- 
sions, as  in  the  Texas,  North  Carolina,  and  West  Virginia  constitu- 
tions, 1870-1876. 

3  Semhlf,  that  under  South  Carolina's  constitution  of  the  last  cen- 
tury a  freeholder  might  vote  where  he  held  land,  even  though  not  a 
resident.     The  text  appears  obscure. 

4  New  York,  1894. 


VOTING  DISABILITIES.  241 

adopted ;  ^  and  supported  paupers  are  quite  generally 
excluded  together  with  conlined  criminals.  Each 
voter  must  have  attained  majority.  During  the 
Civil  War  and  subsequently,  gratitude  to  the  citizen 
soldier  induced  in  various  loyal  States  some  special 
extension  of  the  franchise  for  the  special  beneht  of 
that  class  of  persons.^  Idiots  and  insane  persons  are 
always  implied  and  often  express  exceptions  to  the 
exercise  of  local  suffrage.  While  the  Native  Ameri- 
can party  influenced  our  politics,  an  amendment  in 
1858  to  the  ancient  constitution  of  Massachusetts 
compelled  an  additional  residence  of  two  years  within 
the  jurisdiction  of  the  United  States  subsequent  to 
naturalization,  before  any  person  of  foreign  birth 
could  be  entitled  to  vote  or  eligible  to  office;  but 
gratitude  to  the  foreign-born  who  went  forth  to  battle 
for  the  Union  caused  the  repeal  of  that  amendment 
in  1863.  In  various  States  at  the  northwest,  on  the 
contrary,  the  right  to  vote  is  extended  to  aliens 
who  have  declared  their  intention,  even  before  reach- 
ing the  full  status  of  naturalized  citizens  of  the 
United  States.  Latterlj^,  liowever,  some  reaction 
from  this  policy  has  set  in,  Texas  and  Minnesota  in 
1896  pronouncing  overwhelmingly  for  amendments 
which  made  suffrage  by  foreign  immigrants  more 
difficult.  3 

1  Vermont  by  1828  abolished  a  light  which  had  been  given  in  1793 
to  denizens  who  were  not  naturalized  citizens. 

-  Thu3  Massachusetts  in  1881  relieved  from  pauper  disqualification 
every  person  who  had  served  in  the  war  and  been  lionorably  discharged. 
During  the  war,  provision  was  made  by  some  States  for  taking  the 
votes  of  citizen  soldiers  in  the  field.     And  see  New  York,  1874. 

3  So  large  were  the  majorities  for  these  respective  changes  that  in 
Minnesota,  with  no  issue  of  nationality  raised,  the  constitutional  amend- 
ment reciuiring  an  alien  to  become  fully  naturalized  before  he  could 
vote,  must  have  been  supported  by  many  foreign-born  voters  already 
secure  in  their  rights. 

^  See  also  New  York  (1894)  forbidding  a  naturalized  foreigner  to  vote 
within  ninety  days  after  receiving  his  naturalization  papers. 

16 


242  CONSTITUTIONAL  STUDIES. 

Negro  suffrage  in  the  United  States  remains  a 
puzzling  problem,  and  the  revolution  of  sentiment 
favorable  to  its  exercise  is  yet  imperfect.  State  con- 
stitutions, those  especially  in  the  slaveholding  area 
of  the  Union,  made  strong  discriminations  concern- 
ing race  and  color  prior  to  1861.  This  Federal 
Republic  began  its  high  career  as  the  republic  of 
European  immigrants.  Negroes,  mulattoes,  and 
Indians  were  specially  excepted  from  the  right  to 
vote  by  the  first  of  new  slave  States  admitted  into 
the  Union.  1  Ohio,  too,  fu'st-born  of  the  Ordinance 
of  1787,  began  statehood  by  confining  her  elective 
franchise  to  "  every  white  male  inhabitant. "  ^  Even 
Connecticut  in  1818  conferred  suffrage  only  uj)on 
"white  male  citizens."  But  Maine  in  1820,  like  her 
parent  State  Massachusetts,^  conferred  the  right  to 
vote  upon  "all  male  citizens,"  ignoring  from  the 
outset  all  distinctions  of  complexion.  Massachusetts 
and  New  Hampshire  had  always  been  nominally 
liberal  on  this  point,  though  the  projDerty  test  worked 
out  sufficiently  a  practical  difference.  Vermont  (fol- 
lowing Pennsylvania)  and  Rhode  Island  belong  to 
the  same  category.*  New  England's  homogeneous 
population  favored  all  this  generosity  to  races.  Yet 
"free  white  men"  or  "white  male"  inhabitants  or 
citizens  grew  to  be  the  favorite  organic  expression 
during  tlie  first  sixty  years  of  this  nineteentli  cen- 
tury, as  the  nation  expanded,  whether  in  slavehold- 
ing or  non-slaveholding  States;  and  sometimes,  by 
way  of  recompense  for  their  exclusion,  colored  free- 

1  Kentucky,  1792,  1799. 

2  Ohio,  1802. 

3  See  Massachusetts,  Amondirient  TIT.  (1821).  Cf.  Massachusetts 
constitution,  as  to  "  male  in1ial)itants  "  havin/j^  a  property  (jualification. 

■*  Tt  rnii^ht  liave  been  a  Iciral  (|nestion  liow  far  free  negroes  in  tliis 
period  were  to  be  deemeil  "  citizens  of  the  Uniteil  States."  Tiie  Dred 
Scott  decision  (1857)  is  to  be  recalled  in  such  a  connection. 


NEGRO  SUFFRAGE.  243 

men  were  exempted  from  militia  duty  and  all  pay- 
ment of  the  poll  tax.^  North  Carolina's  constitution 
of  1835  witiilield  the  ballot  from  those  descended 
from  negro  ancestors  to  the  fourth  generation.  2  New 
York  in  1821  applied  specially  to  all  negro  voters  the 
requirement  of  three  years'  State  residence  and  a 
freehold  property.^  Even  Pennsylvania,  by  1838, 
changed  from  "all  freemen"  to  "all  white  freemen" 
in  defining  tlie  electoral  franchise.  At  the  date  of 
our  Civil  War,  unquestionably,  the  preponderance 
of  State  authority,  north  as  well  as  south,  justified 
the  conclusion  that  America  v/as  in  general  effect  a 
white  man's  government.* 

Bloodshed  and  the  long  fraternal  strife  of  arms 
put  an  end  to  such  racial  announcements.  With 
the  violent  abolition  of  slavery  throughout  the  land, 
and  the  reasserted  supremacy  of  the  Federal  Union 
over  all  State  opponents,  came,  as  a  secondary  grand 
result,  the  mandatory  extension  of  the  elective  fran- 
chise to  manhood  suffrage  by  Federal  amendment, 
regardless  of  complexion,  race,  or  the  previous  con- 
dition of  bondage.^  The  lately  insurgent  and  slave- 
holding  States  embodied  that  declared  extension  in 
their  new  fundamental  codes,  as  Congress  compelled 
them  to  do ;  and  as  for  the  loyal  States  northward, 
national  duty  and  consistency  demanded  like  organic 
changes.  But  even  in  States  where  no  servile  popu- 
lation was  now  set  free,  where  slavery  had  never 
found  strong  foothold,  and  negroes  still  constituted 

1  Vermont,  1793;  Pennsylvania,  1790;  Ehode  Island,  1842. 

2  New  York,  1S21 ;  Tennessee,  1834. 

3  California  in  1849  is  liberal  to  all  "  wliite  males,"  including  those 
of  Mexico  -wlio  may  elect  to  become  citizens  of  the  United  States ;  and 
even  Indians  and  tlieir  descendants  (bnt  not  negroes)  are  generously 
considered. 

*  See  Indiana,  1851  ;  Oregon,  1857;  Minnesota,  1857. 
5  Supra,  page  197. 


244  CONSTITUTIONAL   STUDIES. 

but  a  small  fraction  of  the  inhabitants,  the  people 
showed  a  decided  repugnance  to  changing  the  old 
rule  which  had  confined  the  ballot  to  "  white  male  " 
inhabitants.  As  late  as  1864  the  new  free  State  of 
Nevada  had  been  admitted  into  the  Union  while 
the  Civil  War  was  in  progress,  with  its  organic  law 
thus  worded ;  and  only  after  a  long  political  struggle 
would  the  Empire  State  of  New  York  conform  its 
own  organic  expression  to  the  fifteenth  Federal 
amendment.^  Tlie  reconstructed  slave  States,  after 
suffering  meanwhile  for  a  few  years  from  the  domi- 
nation of  a  corrupt  political  faction  which  the  new 
and  misguided  negro  vote  had  helped  into  local 
power,  threw  off  the  disgracefid  encumbrance;  and 
since  1877  the  white  natural  leaders  have  generally 
preserved  in  their  own  States  a  practical  home  rule, 
while  the  degraded  negro  vote  has  remained  dormant 
or  suppressed.  A  better  and  stronger  participation 
of  whites  and  negroes  at  the  polls  is  hoped  for  here- 
after, as  the  race  so  long  in  bondage  gains  in  educa- 
tion and  industrial  independence  through  the  civilizing 
process  of  freedom.  Meantime  constitutional  changes 
have  been  wrought  in  several  of  these  States,  which, 
without  actually  transgressing  the  Federal  require- 
ments, bear  chiefly  against  the  large  negro  element 
in  the  population,  by  advancing  the  general  tests  of 
education  and  property  for  all  electors, ^  and  perhaps, 

1  Such  a  proposition  liad  been  in  1840  submitted  separately  to  the 
voters  of  that  great  State  for  adoption,  when  it  was  rejected  by  a  vote 
of  two  to  one.  Again  submitted  by  way  of  amendment  in  18G0,  unre- 
strained negro  suffrage  was  rejected  by  an  immense  majority.  A  new 
constitution  for  New  York  was  framed  in  1868,  wliich  renewed  the 
proposal  of  equal  suffrage  regardless  of  race  or  color ;  and  the  people 
negatived  tliat  proposal  I)y  a  closer  vote.  But  by  constitutional  amond- 
mt-nt  in  1874  equal  suffrage  was  proposed  once  more,  and  that  amend- 
ment was  finally  carried  at  the  polls. 

-  See  Mississippi's  constitution  of  1890,  and  South  Carolina's  of 
1896. 


PLURALITY  ELECTIONS.  245 

too,  by  multiplying  the  enumerated  convictions  for 
crime  upon  which  any  individual  offender  may  be 
wholly  disfranchised.^ 

The  gradual  establishment  of  a  plurality  poll  in 
place  of  the  majority,  as  formerly,  was  in  our  older 
States  the  fruit  of  hard  experience.  For  repeatedly, 
when  leading  parties  were  so  divided  that  a  third 
candidate  held  the  balance  of  power,  were  the  people 
baffled  in  their  preference,  so  that  a  new  trial  at  the 
polls  became  necessary,  or  else  the  Legislature,  after 
a  fundamental  rule  prevalent  in  the  last  century, 
became  the  umpire  of  candidates.  Several  of  the 
leading  historical  States  abandoned  the  majority  for 
the  plurality  doctrine  soon  after  the  middle  of  this 
century, 2  conforming  to  a  practice  established  much 
earlier  in  other  parts  of  the  Union.  By  that  period, 
too,  it  became  common  in  all  newly  admitted  States 
to  prefer  the  same  electoral  test,  and  thus  decide  the 
candidate  chosen,  once  and  for  all,  according  to  the 
obvious  wishes  of  the  greater  number  who  had 
voted.  ^ 

Minority  representation  is  a  new  political  idea 
recognized  in  some  of  the  later  constitutions,  though 
scarcely  favored,  being  confined  naturally  to  local 
groups,  such  as  aldermen,  representing  a  single  dis- 
trict or  city.^  Cumulative  voting,  which  is  much 
aided  by  the  Australian  official  ballot,  seeks  such  an 
end;  and  here  among  more  nominations  on  a  ticket 

1  "  Petty  larceny  "  is  included  among  the  offences  thus  punishable 
in  Virginia's  constitution  of  1876.     See  also  North  Carolina,  1876. 

'^  Massachusetts,  1855;  Maine,  1856;  Virginia,  1880.  Cf.  Federal 
constitution,  old-fashioned  in  this  respect,  page  162. 

'  Vermont,  Rhode  Island,  and  Connecticut  are  probably  the  only 
States  in  the  Union  which  still  require  a  majority  to  elect  at  the  polls. 

*  See  Illinois  constitution,  1870.  West  Virginia,  1872,  permits  a 
referendum  on  this  issue.  So  in  South  Dakota;  but  the  vote  proved 
adverse. 


246  CONSTITUTIONAL  STUDIES. 

than  there  are  persons  to  be  voted  for,  voters  can 
accumulate  their  strength  m  the  selection. 

California  in  1879  excluded  all  natives  of  China 
from  the  suffrage.^  Hitherto  the  American  rule 
with  trivial  exceptions  is  seen  to  have  been,  under  its 
most  liberal  conditions,  that  of  manliood  suffrage; 
and  the  admission  of  woman  partially  or  fully  to  the 
same  iDolitical  privilege  has  now  become  an  agitating 
issue,  of  whose  final  outcome  in  States  long  organized 
upon  the  historical  basis  of  self-government  it  is  yet 
too  early  to  judge. ^  That  the  Legislature  may  dis- 
franchise those  convicted  of  infamous  crime  is  a  con- 
stitutional permission,  founded  upon  sound  reason, 
which  at  this  day  is  largely  bestowed.^ 

Under  some  of  the  earliest  constitutions  of  the 
new  Federal  epoch  electors  were  specially  privileged 
from  arrest  (except  for  specified  heinous  offences) 
during  their  attendance  at  the  elections  or  while 
going  and  returning;  and  this  privilege  from  arrest 

1  Semhle,  in  conflict  with  the  15th  Federal  Amendment,  unless  regu- 
lated by  some  such  test  as  that  of  religion. 

2  See  Minnesota's  partial  permit  to  the  Legislature  in  1875;  Utah's 
constitution  (1895)  establishes  it.  See  also  permissive  clauses,  North 
and  South  Dakota. 

8  Kentucky  in  1799  denounced  penalties  against  those  convicted  of 
bribery,  forgery,  or  other  higli  crimes  and  misdemeanors,  one  of  wliich 
was  exclusion  from  the  suffrage.  Special  disqualification  from  voting, 
as  a  penalty  for  criminal  conviction,  became  a  just  feature  of  many  of 
our  later  constitutions ;  and  to  the  Legislature  was  given  full  power  on 
the  subject  under  one  fundamental  phrase  or  another.  Ohio,  1802; 
Louisiana,  1812.  Connecticut's  organic  law  of  1818  (amended,  1875) 
recpiired  every  elector  to  "  sustain  a  good  moral  character,"  and  de- 
prived one  witliout  reservation  of  his  right  to  vote  on  conviction  of 
bribery,  forgery,  pt^rjury,  duelling,  fraudulent  bankruptcy,  "or  other 
offence  for  which  infamous  puni.shmont  is  iuilicted."  That  the  Legi.s- 
lature  may  disfranchise  those  convicted  of  infamous  crime  is  the 
milder  expression  of  many  States.  Indiana,  181G;  New  York,  1821  ; 
Delaware,  1831 ;  Virginia,  1830;  Tennessee,  1834.  "Betting  on  elec- 
tions" is  an  offence.  New  York,  184G.  Bribery,  or  the  attempt  to 
bribe,  is  a  felony ;  and  one  who  offers  a  bribe  may  testify  without 
being  prosecuted  for  doing  so.     New  York,  1894. 


VOTERS'  INCREASED  POWER.  247 

has  become  during  the  present  century  a  feature  of 
many  State  constitutions. ^  No  elector  shall  be 
obliged  to  perform  militia  duty  on  election  day 
except  in  time  of  war  or  public  danger. ^  And  dur- 
ing our  latest  era  the  American  disposition  has 
increased  to  combine  elections  so  as  to  reduce  their 
number  and  frequency,  and  give  the  local  people  of  a 
State  relief  from  political  turmoil  and  excitement. 
State  and  national  elections  have  in  consequence 
been  set  for  the  same  day,  where  formerly  they  were 
held  in  different  months  of  the  same  year;  and 
biennial  State  elections  for  both  Legislature  and  the 
highest  executive  officers  are  now  decidedly  preferred 
to  those  annual  pollings  once  deemed  so  essential  to 
liberty.^ 

Not  only  in  the  extension  of  voting  membership, 
but  through  increased  opportunities  for  exercising 
the  power  to  choose  among  candidates,  has  the  elec- 
tive francliise  made  immense  progress  during  the  past 
century  in  these  United  States.  The  choice  of  local 
town  and  county  officers  at  the  polls  has  been  con- 
sistently maintained  from  the  colonial  age,  and  more 
than  ever  do  such  incumbents  derive  authority  from 
the  people.  Instead  of  choosing  members  of  a  single 
representative  assembly,  or  of  the  most  numerous 
branch  only  of  the  Legislature,  as  formerly,  the  mass 
of  voters  in  each  State  have  become,  throuofh  the 
gradual  assimilation  in  representative  character  of 
the  two  ] louses  of  a  State  legislature,  electors  on  a 
uniform  basis   of  qualification  to  both  State  Senate 

1  Peuusylvania,  Delaware,  Kentucky,  anil  Tennessee,  1700-1799. 
The  phrase  is  suggested  by  that  clause  nf  onr  Federal  constitution 
which  defines  the  privilege  for  nienihers  of  Congress. 

■^  Utah,  1895.     And  see  supra,  page  3.3. 

*  Supra,  page  18. 


248  CONSTITUTIONAL  STUDIES. 

aud  House.  While  for  years  after  American  inde- 
pendence was  declared,  the  chief  magistrate  of  many 
States  was  cliosen  by  the  Legislature,  that  choice 
now  devolves  upon  the  general  body  of  voters  in- 
stead, as  does  also  that  of  most  other  high  executive 
officers,  and,  by  as  nearly  a  direct  process  as  the 
Federal  constitution  will  permit,  of  President  and 
Vice-President  of  the  United  States  besides.  Finally, 
and  as  the  full  triumph  of  free  suffrage  longest 
opposed  by  conservative  citizens,  judges  and  the 
chief  officials  connected  with  the  machinery  of  the 
courts  are  now  chosen  by  the  voters  in  nearly  every 
State,  —  sometimes  at  large  and  sometimes  by  dis- 
tricts. The  march  of  the  American  democracy  to 
power  has  proved  irresistible. 


V. 

THE   LEGISLATURE. 

The  general  pattern  of  an  American  State  legisla- 
ture, as  shaped  out  by  1789,  has  served  ever  since 
without  essential  change.  And  the  practical  recon- 
struction of  Congress  by  that  important  date  gave  to 
the  more  favored  plan  of  a  two-chambered  body 
throughout  the  United  States  an  immense  propulsion. 
For  under  all  republican  governments  experience 
teaches  that  the  law-making  power  needs  a  constant 
check  upon  headlong  activity,  like  that  swift  messen- 
ger of  the  fairy  tale  who  had  to  put  clogs  upon  his 
feet  lest  he  should  run  too  far.  Scarcely  had  the 
Federal  government  started  upon  its  nobler  career, 
when  Georgia  and  Pennsylvania,  the  only  States 
among  the  old  thirteen  that  had  hitherto  since  1776 
experimented  with  the  Legislature  of  a  single  house, 
gave  up  forever  that  tumultuous  representative  body, 
and  conformed  thenceforth  to  the  bicameral  rule.^ 
Vermont,  however,  whose  young  admiration  of 
Pennsylvania's  previous  instrument  of  State  govern- 
ment was  unquenched,  entered  the  Union  in  1793 
with  a  single  representative  body  by  way  of  Legisla- 
ture. But  in  that  bucolic  State  of  small  townships, 
coequal  in  comparison,  under  highly  favorable  con- 
ditions for  further  experiment,  the  plan  did  not  work 
well,  and  by  1836  a  legislature  of  two  branches  was 
substituted.     These  tests  appear  to  have  been  conclu- 

1  1789-1790,  under  new  State  constitutions. 


250  CONSTITUTIONAL  STUDIES. 

sive  enough  for  American  opinion;  and  the  two- 
chambered  Lcgishitiire  has  since  remained  the  only 
kind  set  up  in  the  United  States. 

But  a  true  basis  of  difference  between  the  two 
representative  branches  of  a  State  legislature  has 
not  been  easy  to  formulate.  That  happy  composite 
of  the  many  and  the  one  which  supplies  historical 
distinction  between  the  Senate  and  House  of  Repre- 
sentatives of  Congress  fmds  no  analogy  in  the  popula- 
tion of  an  individual  State.  Some  of  our  earlier 
local  statesmen  would  have  drav/n  out  a  basis  of  dis- 
tinction for  the  commonwealth  by  opposing  property 
or  social  standing  in  the  upper  or  smaller  branch  to 
numbers  in  the  lower  or  larger;  but  the  deep-set 
repugnance  of  the  common  voters  to  anything  like 
organic  recognition  of  privileged  wealth  or  aristocracy 
sweeps  us  farther  and  farther  from  such  political 
arrangements.  Nothing  has  been  left  in  the  present 
era  by  way  of  a  real  difference  of  deputed  authority 
in  the  two  branches  of  a  State  legislature,  but  such 
as  comes  from  representing  geographical  voting  dis- 
tricts of  larger  area  and  population  in  the  Senate, 
and  of  smaller  area  and  population  in  the  House, 
with  perhaps  a  higher  standard  of  age  and  a  more 
stable  tenure  in  the  one  branch  than  in  the  other. 
Nor  are  even  such  slight  differences  tolerated  pa- 
tiently in  a  crisis  of  excitement  by  our  jealous  democ- 
racy, eager  that  its  will  shall  be  promptly  and 
implicitly  obeyed  by  the  whole  Legislature,  and  that 
each  member  shall  bend  to  his  constituency.  The 
result  of  all  this  is  naturally  to  invite  into  power 
llexible  and  time-serving  legislators,  seldom  very 
wise,  and  frequently  dishonest,  to  the  exclusion  of 
the  free-spoken  with  minds  of  their  own.  In  Massa- 
chusetts, as  in  most  parts  of  New  England,  it  was 
long  the  rule  of  representation  to  apportion  the  State 


THE  LEGISLATURE.  251 

Senate  by  coimties  and  the  House  by  towns;  and 
since  candidates  were  arranged  as  much  as  possible 
by  general  tickets  in  the  earlier  days  of  the  Union, 
leading  citizens  and  their  constituencies  made  of 
legislative  service  a  matter  for  local  pride  and  dis- 
tinction. The  ablest  and  most  popular  in  the  town 
and  county  were  re-chosen  to  the  General  Court  year 
after  year.  But  in  course  of  time,  as  republicanism 
grew  less  compliant,  the  argument  for  separate  and 
subdivided  candidacies,  for  numerical  representation 
by  one  periodical  census  or  another,  and  for  local 
rather  than  general  tickets,  carried  such  weight  that 
the  old  system  passed  into  discredit.  Temporary 
geographical  lines  now  made  arbitrary  groups  by 
districts,  combining  towns  and  subdividing  counties 
for  one  or  another  branch  of  the  Legislature;  and 
with  little  left  to  interest  the  foremost  citizens  in 
sacrificing  personal  time  for  the  public,  little  chance 
for  conspicuous  service,  representation  now  came 
much  under  the  control  of ,  intriguers  and  petty 
seekers  for  place;  instead  of  centurions  in  politics 
were  the  leaders  of  tens  and  twenties ;  while  towns, 
cherishing  local  pride  no  longer,  had  to  be  content 
with  bargaining  that  the  common  deputy  of  the  geo- 
metrically arranged  district  for  the  time  being  should 
be  put  up  at  one  locality  for  one  legislature,  and  at 
another  for  the  next.  Deterioration  of  ideals  and  of 
personal  character  comes  as  a  necessary  consequence 
of  all  this  modern  nicety  in  fractional  representation, 
though  other  causes  of  political  degeneracy  may  doubt- 
less be  sought  elsewhere;  as,  for  instance,  in  the 
undiscriminating  extension  of  the  elective  franchise 
among  the  shiftless  and  illiterate,  and  the  grov.dng 
wealth  and  complexity  of  society,  affording  opportu- 
nities and  temptation  for  masters  of  political  chicanery 
to  use  organization  for  base  ends.     Democracy  itself, 


252  CONSTITUTIONAL  STUDIES. 

so  admirable  in  most  other  phases,  yields  too  much 
to  insidious  flattery,  and  by  its  capricious  and  uncer- 
tain temper  towards  public  servants  and  its  mis- 
placed gratitude  for  public  services,  repels  many 
who  were  best  worth  trusting  above  the  common- 
place. 

Pennsylvania's  constitution  of  1790  apportioned 
senators  of  the  State  by  districts.  They  were  never 
to  be  less  in  number  than  one-fourth  nor  greater 
than  one-third  of  the  representatives.  Both  houses 
are  in  1796  declared  by  the  new  State  of  Tennessee 
"dependent  on  the  people."  Following  Federal 
example,  the  names  "  Senate  "  and  "  House  of  Repre- 
sentatives "  henceforth  became  usually  distinctive  of 
the  two  branches.  1  New  York  in  1801  increased  her 
House  and  diminished  her  Senate,  in  order  the  better 
to  make  a  fair  contrast  of  size  a  prime  element  of 
distinction.  The  same  period  of  service  for  both 
houses  was  selected  in  some  new  constitutions  of  the 
eighteenth  centur3\  IJut  other  States  preferred  some- 
thing more  like  the  Federal  arrangement;  and  so  at 
least  that  senators  should  be  chosen  for  a  double, 
treble,  or  still  longer  term  than  members  of  the 
House,  with  perhaps  a  corresponding  division  of 
classes,  for  effecting  a  gradual  change  of  member- 
ship, as  in  the  United  States  Senate. ^  While 
"annual  elections  "  continued  still  into  the  nineteenth 
century  the  rule  of  the  States  for  choosing  to  the 
popular  branch,  at  least, ^  Tennessee,  upon  her  admis- 

1  Delaware  in  1792  substitutes  this  style  for  "  Council "  and  "  House 
of  Assembly." 

2  Kentucky,  1799;  South  Carolina  and  Pennsylvania,  1790;  Dela- 
ware, 1792.  Kentucky,  1792,  tried  tlie  Maryland  plan  of  an  electoral 
college  for  choosing  senators,  and  by  1799  abandoned  it.  Supra, 
page  .54. 

*  See  Kentucky,  Vermont,  Pennsylvania,  South  Carolina,  Georgia, 
New  Hampshire,  1789-1800. 


THE  LEGISLATURE.  253 

sion  in  1796,  ordained  biennial  elections  for  either 
branch.  State  elections,  long  held  in  the  spring  of 
the  year,  became  by  national  influence  transferred 
gradually  to  the  fall,  and  then  absorbed  into  the 
month  and  Tuesday  of  November  designated  for 
Federal  elections.  While  New  England  favored 
towns  as  the  early  unit  of  representation  m  the 
House,  southern  States  in  the  vicinity  of  Virginia 
chose  rather  the  county  for  that  purpose.  And  that 
census  plan  of  periodical  apportionment  for  represen- 
tatives, which  the  Federal  constitution  was  not  the 
earliest  to  offer,  becomes  rapidly  a  permanent  feature 
in  State  systems. ^  Both  houses,  says  Ohio,  as  the 
nineteenth  century  began,  are  "  to  be  chosen  by  the 
people ;  "  and  her  simple  tax-paying  qualification  for 
membership  in  either  branch  betokened  the  dawn  of 
a  liberal  dispensation  of  former  property  require- 
ments.^  As  in  earlier  State  constitutions,  eligibility 
to  the  Legislature  was  made  incompatible  with  hold- 
ing other  places  of  public  trust;  and  priests  and 
ministers  of  the  gospel  were  in  many  States  pro- 
nounced ineligible  to  the  Legislature.^  Laws  en- 
acted were  to  be  published  at  the  end  of  each  session. 

Distrust  of  the  Legislature  appeared  in  funda- 
mental State  provisions  very  soon  after  the  new 
machinery  of  our  Federal  Union  had  been  set  in  full 
motion.     And  most  of  the  constraints  now  gradually 


1  See  Pennsylvauia,  Tennessee,  Georgia,  during  the  eighteenth 
century. 

2  Ohio,  1802.  But  Louisiana,  1812,  imposed  a  landed  test,  while 
some  older  States  were  abolishing  such  standards.  New  York  long 
retained  her  freehold  requisite  for  membersliip  in  the  Senate. 

*  The  Massachusetts  constitution  of  1780  placed  no  such  disqualifi- 
cation upon  the  clergy ;  but  officers  of  instruction  at  Harvard  College 
were  made  specially  ineligible,  —  a  rule  which  was  not  repealed  until 
1877. 


254  CONSTITUTIONAL  STUDIES. 

imposed  by  the  people  of  the  States  were  doubtless 
the  offspring  of  public  evils  practically  felt.  Thus, 
New  Hampshire  ordained  in  1792  that  no  member  of 
the  Legislature  should  take  fees  or  serve  as  counsel 
or  advocate  in  either  branch.^  The  appointment 
during  one's  legislative  term  to  an  office  not  elective, 
which  had  been  newly  created,  or  whose  emoluments 
had  been  increased  by  the  Legislature  in  which  he 
served,  was  largely  forbidden. ^  Secrecy  of  procedure, 
in  State,  as  in  the  United  States  Senate,  came  under 
speedy  condemnation.  That  the  galleries  of  each 
House  shall  be  open  to  all  persons  who  behave 
decently  we  find  proclaimed  in  various  new  constitu- 
tions before  the  close  of  the  last  century. ^  Ohio's 
constitution  in  1802  set  an  example  of  pai*simony  in 
fixing  the  pay  of  legislators  at  a  low  rate,  and  there 
has  been  much  regulation  of  the  matter  since,  in  the 
various  States,  with  an  ingenuity  to  discover  some 
standard  which  miglit  induce  short  sessions.  That 
no  increase  of  compensation  to  members  shall  go  into 
effect  for  the  same  session  in  which  the  bill  passes 
has  long  been  the  rule  of  many  States.'*  And  as  the 
middle  of  this  century  approached,  the  popular  pur- 
pose grew  persistent  to  settle  by  basic  and  precise 
provisions  the  relative  number  of  each  branch,  rules 
for  apportionment  and  taking  the  census,  and  most 
other  details  of  representative  election.  A  classified 
Senate,  like  that  of  the  United  States,  was  now  in 
the  height  of  American  favor  ;  while  as  to  biennial 

1  Vermont  in  1793  provided  similarly. 

2  ronnsylvaiiia,  1790;  Delaware,  1792.  Nor  for  one  year  after. 
Kentucky,  1799.  The  Federal  constitution  is  imitated  in  such 
provi.sions. 

"  New  riampshireand  Delaware,  1792;  Vermont,  179.3;  Tennessee, 
1796.    See  also  Pennsylvania,  1776 ;  New  York,  1 777.    Supra,  page  56. 

*  See  New  York,  Virginia,  Tennessee,  Alabama,  and  Mississippi 
about  1820. 


THE  LEGISLATURE.  255 

legislatures,  several  States  had  advanced  by  1850  to 
the  next  stage  of  making  sessions  biennial  besides,  as 
well  as  the  LegislaLure  itself.^  No  session,  prescribes 
Louisiana's  organic  law  in  1845,  shall  last  beyond 
sixty  days. 2  And  when  in  extraordinary  session, 
says  that  of  Illinois  in  18-18,  those  subjects  only  shall 
be  considered  for  which  the  Legislature  was  convened. 
As  in  the  elective  franchise,  we  now  see  religious 
and  property  qualifications  for  the  Legislature  dis- 
pensed with,  age  and  a  local  residence  being  the  only 
enduring  requisites  for  a  seat  in  either  brancli.^  In 
the  latter  respect  State  fundamental  law  has  grown 
more  insistent,  if  possible,  as  time  goes  on;  and 
British  observers  of  our  institutions  have  not  failed 
to  comment  upon  the  disadvantage  of  such  a  rule,  in 
keeping  the  best  talent  of  a  whole  State  from  com- 
peting for  the  public  service,  in  order  that  local 
mediocrity  may  be  exalted  beyond  its  deserts.  But 
whatever  may  be  the  force  of  this  objection,  the 
American  people  appear  committed  beyond  recall  to 
such  requirement,  since  it  gives  mathematical  force 
to  each  constituency.  And  in  the  more  ambitious 
prize  of  representative  to  Congress,  where  State  con- 
stituencies are  still  so  much  at  liberty  to  go  outside 
their  own  area  for  a  candidate,  it  rarely  happens  that 
a  non-resident  district  representative  is  sent  to  the 
Federal  House  at  Washington  by  choice  of  the  dis- 
trict voters.  For  a  certain  prepossession  towards 
local  objects,  such  as  comes  from  common  residence, 
is  deemed  needful  for  a  representative ;  so,  too,  local 
interests  must  be  regarded,   both   in  procuring  the 

1  See  Georgia,  Texas,  Alabama,  Maryland,  1840-1846.  This  is  an 
advance  upon  the  Federal  plan  of  a  biennial  Congress  holding  annual 
sessions. 

2  And  all  legislation  beyond  that  date  should  be  null  and  void. 

3  Delaware  was  the  latest  State  which  required  a  property  qualifica- 
tion for  the  Senate.     But  see  constitution  (1897). 


256  CONSTITUTIONAL  STUDIES. 

crumbs,  however  small,  of  public  patronage,  and  in 
guarding  and  shaping  special  concerns  in  the  vast 
miscellaneous  business  of  a  legislature.  For  all 
enactments  of  a  legislature  do  not  affect  alike  the 
welfare  of  the  whole  body  politic,  nor  aim  at  general 
reforms ;  nor  is  all  public  administration  an  adminis- 
tration for  all.  A  few  constitutions  of  the  eigh- 
teenth century  in  its  final  decade  insisted  still  upon 
freehold  or  property  qualifications,  especially  in  the 
State  Senate ;  ^  and  the  property  test  outlasted  in  the 
new  era  that  of  religion;  yet  Federal  example  and 
the  genius  of  American  democracy  tended  speedily 
to  abolish  all  such  distinctions.  While  the  yeomen 
or  property-holders  sat  together  in  a  legislature, 
membership  was  of  a  higher  grade,  like  that  which 
we  now  see  in  a  social  club. 

Federal  example  set  the  fashion  for  various  phrases 
of  special  description  in  a  State  constitution,  relating 
to  officers  and  methods  of  organization  and  due  pro- 
cedure for  either  house  in  transacting  the  public 
business.  And  so,  too,  in  the  relative  functions  of 
the  two  houses,  much  the  same  sort  of  definition 
became  applied.  Thus,  "  bills  for  raising  revenue  " 
(a  style  henceforth  preferable  to  the  State  "money 
bills,"  so  called  before  1787)  were  likewise  to  origi- 
nate in  the  House,  or  larger  body;  yet  as  this  nine- 
teenth century  developed,  and  two  branches  in  most 
States  were  found  in  fact  equally  representative  of 
the  people,  unlike  the  American  Congress,  the  dis- 
position of  State  conventions  increased  to  dispense 
with  such  old  distinctions,  so  that  all  bills  whatever 
might  originate  in  either  house.^     One  idea  embodied 

^  E.  g.,  South  Carolina,  Tennessee,  Delaware,  New  York. 
^  See  Tennessee,  179G,  setting  an  example  in  this  respect,  since 
widely  followed. 


THE  LEGISLATURE.  257 

in  a  State  constitution  or  two  of  the  eighteenth 
century,^  has  found  niucli  favor  since:  that  every 
new  bill  must  be  read  for  three  successive  days,  with 
free  opportunity  of  discussion  before  it  passes,  unless 
in  case  of  urgency  a  stated  fraction  of  the  wliole  mem- 
bership much  greater  than  a  majority  dispenses  with 
the  rule  in  that  branch  where  the  bill  is  pending. 
More  signilicant  still  is  the  spread  of  an  early  New 
Jersey  fundamental,  which  substitutes  for  the  major- 
ity of  a  quorum,  in  various  instances,  the  majority  of 
all  elected  to  the  body.  Thus,  while  Federal  prac- 
tice, and  that  perhaps  of  most  States,  still  conforms 
to  the  old  Parliamentary  standard  of  a  majority  of 
the  quorum  for  passing  any  bill,  with  a  larger  frac- 
tion, such  as  two-thirds,  for  overcoming  vetoes  and 
in  other  special  cases,  not  less  than  nineteen  of  the 
United  States  could  be  counted  in  1884  which  made 
instead  the  majority  of  all  elected  the  test  of  original 
passage  in  either  branch,  while  some  nine  States 
applied  that  standard  for  passing  bills  over  an 
executive  veto.^ 

Old  State  precedent^  has  been  much  followed  in 
permitting  a  legislature  (where  the  Federal  constitu- 
tion itself  is  silent)  to  punish  by  brief  imprisonment 
persons  not  members  who  are  guilty  of  contempt. 
By  1844  New  Jersey  put  forth  another  idea  for  the 
first  time  apparently  in  our  organic  law,  that  each 
bill  passed  by  the  Legislature  must  have  but  one 
subject,  the  same  to  be  expressed  in  its  title;  and 
New  York  in  184G  confining  the  idea  rather  to 
private  and  local  bills,  that  rule  more  or  less  compre- 

1  Kentucky,  1799,  and  prior  Virj^inia  and  North  Carolina  provi- 
sions; also  Illinois  and  New  York,  1816-1835. 

"  See  New  Jersey  (1770);  tahlos  in  Horace  Davis's  Constitutions, 
67,  68.  Kentucky,  1799,  fir.st  illustrates  the  latter  iu.stance  of  requir- 
ing a  majority  of  all  elected  in  either  branch  to  overcome  a  veto. 

8  Supra,  page  67. 

17 


258  CONSTITUTIONAL  STUDIES. 

liensive  has  since  found  its  way  into  many  other  State 
constitutions,  often  with  the  added  proviso  that  no 
law  shall  be  enacted  at  all  except  by  a  bill.^  That 
no  public  act  shall  be  in  force  until  a  stated  period 
after  the  end  of  the  session  corrects  some  miscliiefs 
of  the  old  common  law,  peculiarly  distressing  before 
steam  locomotion  and  the  telegraph  were  invented. 
Not  even  the  public  contracts  of  a  legislature  have 
escaped  the  vigilance  of  constitution  framers  in  the 
newer  States.  Those  for  fuel  or  for  stationery  must 
be  given  to  the  lowest  bidder ;  extra  compensation  on 
public  contracts  must  never  be  awarded ;  nor  may  any 
member  of  the  Legislature  be  lawfullj^  interested  in 
public  contracts.  2  In  New  York  State  the  stringent 
constitutional  rule  is  now  that  all  money  bills  and 
such  as  appropriate  money  or  other  property  for  local 
or  private  purposes  shall  require  for  their  passage  in 
each  branch  of  the  Legislature  the  two-thirds  vote 
of  all  members  elected.^ 

The  era  of  strong  fundamental  restraint  upon 
legislative  power  in  America  opened  with  the  second 
quarter  of  the  nineteenth  century.  The  patronage 
of  electing  the  chief  executive  and  all  other  high 
State  ofificials  became  by  this  time  quite  generally 
taken  from  legislatures  that  had  once  enjoyed  it, 
and  vested  by  State  constitution  in  the  suffrage  of 
the  people.  And,  furthermore,  the  brief  constitutional 
text  applicable  to  legislative  action  in  the  earlier 
instruments,  importing  great  confidence  in  the  discre- 
tion of  the  people's  representatives,  ceases  forever  to 

1  California's  constitution  in  1849  well  rounds  off  the  expression, 
aildinjT  tliat  no  law  sli.ill  ho  revised  or  amended  hy  reference  to  its  title, 
hut  the  section  amended  sliall  l>e  jnihlished  at  lenpjth.  Appropriation 
hills  shall  contain  no  other  provisions.     Illinois,  1848. 

2  Wi.sconsin  and  Illinois,  1848. 
8  New  York,  1 804. 


THE  LEGISLATURE.  259 

characterize  these  written  fundamental  ordinances. 
Nothing  so  convincingly  manifests  the  progress  of  a 
popular  self-confidence  and  strength  among  Ameri- 
cans, as  contrasted  with  the  old  customary  repose  of 
constituents  in  the  superior  wisdom  of  the  social 
superiors  who  represented  them,  as  the  nineteentli- 
century  development  in  this  special  respect.  Instead 
of  leaving  such  public  agents,  as  in  Revolutionary 
times,  to  formulate  and  philosophize  over  the  extent 
to  which  it  might  be  safe  to  admit  the  commonalty 
to  participate  in  government,  we  see  communities  as 
the  efficient  principals  binding  public  agents  by  their 
own  fundamental  rules  and  cutting  down  credentials, 
as  though  deference  to  statesmanship  were  at  an  end. 
Instead  of  looking  up  to  the  Legislature  as  the  arca- 
num of  fundamental  liberties,  we  see  the  people 
inclining  rather  to  governors  and  the  courts,  as  a 
needful  corrective  upon  legislatures  tempted  to  go 
astray.  Instead  of  hailing  each  new  session  of  the, 
people's  representatives  as  the  advent  of  salutary 
reform,  we  see  legislatures  shortened  and  kept 
adjourned  as  much  as  possible,  because  of  their 
sinister  disturbing  influence  upon  the  sober  pursuits 
of  life;  and  beyond  all  delegation  of  authority  is 
seen  the  popular  determination  to  bend  this  and  all 
other  departments  of  government  to  public  opinion, 
and  render  each  public  servant  responsible  for  his 
stewardship. 

These  restrictions  upon  legislative  action  have 
become  so  varied  and  numerous  in  our  modern  State 
constitutions,  and  so  diffuse,  moreover,  as  scarcely  to 
admit  of  a  clear  classification.  First  and  foremost, 
they  show  by  1835  a  positive  disrelish  of  special 
legislation,  and  especially  of  that  for  the  benefit  of 
business  corporations.  General  laws  become  hence- 
forth  insisted  upon  as  much  as  possible  by  way  of 


260  CONSTITUTIONAL  STUDIES. 

substitute.  Thus,  the  Legislature  shall  have  no 
power  to  suspend  a  general  law  for  individual  benefit, 
nor  to  pass  laws  for  individual  benefit  which  are 
inconsistent  with  general  laws,  nor  to  grant  special 
privileges,  immunities,  and  exceptions.^  No  private 
law  shall  be  passed  unless  upon  due  notice  of  appli- 
cation.^  PriA-ate  and  special  privileges  and  appro- 
priations are  seen  checked  in  various  ways.  Some 
States  shortly  before  the  middle  of  the  century  tried 
to  hamper  the  private  creation  of  corporations ;  others 
forbade  that  corporations,  excepting  municipal  ones, 
should  be  specially  created,  but  remitted  their  forma- 
tion altogether  to  general  laws,  with  a  general  reser- 
vation that  the  Legislature  might  alter  or  repeal.^ 
Laws  for  loans  or  for  pledging  the  State  credit  are 
expressly  limited,  both  in  the  amount  to  be  borrowed 
and  the  method  of  legislative  enactment.*  The 
particulars  of  taxation,  too,  under  a  just  assessment, 
are  defined;  and  those,  too,  of  collection.^  Before 
the  middle  of  the  century,  and  following  the  disas- 
trous crisis  of  public  State  improvements  about  1837, 
still  more  specific  and  stringent  constraint  was  placed 
by  organic  laAV  upon  loans  of  State  credit,  and  the 
authority  to  create  State  debts  where  no  emergency 
of  war  or  insurrection  existed.  IVIunicipal  borrow- 
ing, furthermore,  was  expressly  limited,  and  muni- 
cipal authority  in  other  respects;  nor  should  the 
State,  through  legislation,  aid  private  individuals  or 
corporations. '^     Banks  were  the  first  among  chartered 

1  Tennessee,  1834.  2  North  Carolina,  1835. 

8  See  California,  1849;  also  various  States  (1835-1849),  such  as 
Rhode  Island,  New  York,  Pennsylvania,  Michigan,  Florida,  Texas, 
Wisconsin. 

*  Mississippi,  1832. 

<»  Maine,  1820. 

"  See  1842-1849,  lihode  Island,  Maine,  New  York,  New  Jersey, 
Illinois,  Florida,  Wisconsin,  Texas,  California. 


THE  LEGISLATURE.  261 

private  corporations  to  encounter  such  popular  dis- 
like;^ but  after  the  Civil  War  it  was  chiefly  the 
railway-carrier. 

There  shall  be  no  act  of  incorporation  hereafter, 
says  Delaware  in  1831,  unless  two-thirds  of  each 
branch  concur;  a  power  of  revocation  shall  be 
reserved,  and  the  term  (unless  for  public  improve- 
ment) shall  not  extend  beyond  twenty  years.  In 
divorce  and  alimony  matters,  the  alteration  of  names, 
adoption,  and  the  restoration  of  voting  rights  to  those 
convicted  of  crime.  States  authorized  general  legisla- 
tion, but  forbade  special  enactments  on  the  subject. ^ 
And  so,  too,  in  organizing  churches  and  private 
societies,  and  in  authorizing  the  sale  of  lands,  general 
laws,  with  a  special  procedure  in  the  courts,  now 
found  fundamental  favor. 

The  impulse  thus  given  by  1850  to  legislative 
regulation  and  constraint  by  State  fundamental  law 
has  since  been  steadily  felt,  and  extended  to  every 
quarter  of  the  Union.  Every  later  reform  has  been 
in  the  same  direction  of  fundamental  constraint  by 
the  people,  so  that  public  servants  may  not  feel 
above  their  masters.  As  for  the  structure  of  our 
American  Legislature  of  two  houses,  New  England 
States  still  prefer  that  each  branch  shall  come  wholly 
fresh  from  the  people  at  each  election ;  which  election 
in  INIassachusetts  and  Rhode  Island  alone  is  still 
annual,  after  the  eighteenth-century  fashion.^     But 

1  See  Indiana,  Illinois,  Missouri,  Mississippi,  1816-1820.  No  more 
than  one  bank  shall  ever  be  chartered  by  the  same  act.  Pennsylvania, 
1838,  recalling  Governor  Snyder  and  the  "litter  of  banks"  which  he 
killed  by  a  veto. 

2  North  Carolina,  1835. 

3  An  amendment  proposing  the  change  from  annual  to  biennial 
legislatures  was  su])mitted  to  the  people  of  Massachusetts  in  1896  and 
voted  down  at  the  polls. 


262  CONSTITUTIONAL  STUDIES. 

all  other  States  of  the  Union,  old  or  new,  have 
adopted  biennial  terms,  —  a  system  which  has  given 
satisfaction  wherever  tried.  And  in  choosing  bien- 
nial legislatures  the  State  preference  by  two  to  one 
is,  furthermore,  in  favor  of  biennial  sessions,  unlike 
the  rule  of  Congress.^  Senators  hold  usually  in  our 
States  by  the  classified  plan  and  with  longer  tenure 
than  the  House ;  but  a  half  rotation  at  each  election, 
so  as  to  bring  the  Senate  in  closer  touch  with  public 
sentiment,  modifies  the  Federal  example.^  For  either 
branch  of  the  Legislature  the  candidate,  local  by 
district  and  local  in  residence,  is  chosen  at  the  polls. 
About  half  the  United  States  limit  the  general  ses- 
sion of  a  legislature,  even  though  it  be  only  a  biennial 
one,  to  a  fixed  number  of  days,  averaging  less  than 
ninety.^  Nor  has  it  been  thought  ignoble  to  so  regu- 
late the  pay  of  legislators  as  to  spur  them  up  to 
organize  promptly  and  push  their  work  to  its  conclu- 
sion ;  for  we  find  a  gross  salary  fixed  for  the  whole 
session,^  or  a  per  diem  for  so  many  days,  and  no 
longer;^  while  Indiana's  constitution  of  1851  made 
the  humiliating  rule  that  each  legislature  must  organ- 
ize within  five  days  from  assembling  a  quorum,  or 
else  have  all  the  pay  stopped  until  tlie  organization 
is  complete. 

Other  stringent  provisions  are  found.  No  new 
l>ill  shall  be  introduced  after  so  many  days  "^  of  the 

^  New  York,  New  Jersey,  Kansas,  and  Wisconsin,  besides  some  New 
England  and  various  scattered  Southern  States,  prefer  annual  sessions 
for  a  biennial  legislature. 

-  New  York,  in  184G,  took  this  new  dei)arture  as  the  result  of  long 
ex]ierienco,  and  Michigan,  Oliio,  and  other  States  presently  joined  her. 
See  Table  (1884)  Davis's  Constitutions,  68. 

^  Davis,  ib.  No  session  to  last  longer  than  tlie  lengtli  prescribed  by 
organic  law,  unless  two-thirds  of  all  elected  vote  to  extend  it.  Ken- 
tucky, 1850;  and  see  Virginia,  IS.'iO. 

*  Oregon,  1857. 

6  Michigan,  1850.  «  Fifty.     Midiig.an,  1860. 


THE  LEGISLATURE.  263 

session  have  expired.  No  law  shall  pass  by  either 
house  on  the  day  prescribed  for  adjournment,  but 
bills  may  then  be  em^olled.^  Acts  shall  not  pass  to 
cure  former  omissions,  but  by  general  statutes  the 
courts  may  be  authorized  to  apply  such  remedy.  The 
people  shall  choose  a  State  printer;  stationery  con- 
tracts shall  be  awarded  by  a  legislature  to  the  lowest 
bidder;  perquisites  of  members  in  public  documents, 
books,  newspapers,  and  postage  are  cut  down  or  for- 
bidden. No  State  paper  shall  be  selected  or  estab- 
lished for  publishing  the  laws.^  A  date  is  designated 
when  all  acts  of  a  session  with  fixed  exceptions  shall 
take  effect,  having  by  that  time  been  duly  published 
and  circulated.  Technical  terms  must  be  avoided  in 
legislation;  every  act  shall  have  its  title,  and  only 
one  subject;  all  acts  are  to  be  presumed  public  acts, 
nor  shall  revision  be  made  by  mere  reference.  Riders 
shall  not  be  placed  upon  appropriation  acts,  but  every 
such  act  shall  appropriate  only.^  Many  compulsory 
provisions  of  this  character  originated  in  States  of 
the  Mississippi  valley,  or  west  of  the  Rocky  range ; 
but  some,  the  oldest  and  wealthiest  of  Atlantic  com- 
monwealths, like  New  York,  have  since  made  similar 
regulation,  tired  of  the  long  usage  in  bodies  unre- 
strained like  Congress,  of  deferring  enactments  both 
trivial  and  momentous  to  the  closing  days  of  a  ses- 
sion, and  then,  with  shameful  haste,  mucli  scandal 
and  little  scrutiny,  pushing  the  whole  mass  through 
together.* 

Massachusetts,  proud  of  traditions  and  her  old 
framework  of  government,  not  only  resists  to  the  last 

1  Minnesota,  1857.  2  ggg  Micliigan,  1850;  Ohio,  1851. 

3  Virginia,  Ohio,  Indiana,  Oregon,  1851-1857. 

*  By  New  York's  anipmlnients  of  1894,  all  l)ills  must  have  been 
printed  and  distributed  to  the  legislators  at  least  three  days  before 
their  passage. 


264  CONSTITUTIONAL   STUDIES. 

such  modern  organic  changes,  but  stands  for  the 
broadest  discretion  still  possible  in  legislative  pro- 
cedure and  policy.  After  temporizing  for  a  while 
in  her  basis  of  membership  with  the  modern  embar- 
rassment of  growing  cities  and  depleted  towns,  that 
State  conformed  before  the  Civil  War  to  the  new 
necessity  of  district  numerical  representation.  Vir- 
ginia, after  a  somewhat  similar  effort  to  temporize, 
found  herself  overwhelmed  with  a  solution  of  the 
representative  problem  which  in  the  Civil  War  cost 
the  State  her  whole  western  population.  A  strict 
apportionment  rule  for  the  two  legislative  branches 
under  a  periodical  census  became  the  almost  invari- 
able practice  of  American  States  before  1861.  Limi- 
tations were  by  that  time  usually  fixed  or  clearly 
designated  in  new  constitutions  concerning  the  size 
of  each  house.  Many,  however,  of  the  changes 
which  in  more  modern  constitutions  of  our  States 
have  been  seen  fundamental  ^  are  by  force  of  mere 
statute  wrought  out  in  Massachusetts  and  the  few 
other  States  which  still  confide  in  the  discretion  of 
representatives,  and  hug  the  old  tlieory  that  legisla- 
tures, freely  chosen  and  frequently  convening,  are 
the  palladium  of  republican  liberty.  Biennial  legis- 
latures, with  biennial  sessions,  would  hardly  suit  a 
commonwealth  until  fundamental  checks  had  been 
put  upon  legislation  itself. 

Scarcely  a  State  in  the  ITnion,  except  Delaware,- 
exists  at  the  present  day,  outside  of  New  England, 
whose  constitution  does  not  enter  into  details  which 
prohibit  s]ieciivl  legislation.  During  the  decade  pre- 
ceding our  CW\\  War  the  constitutions  of  Indiana 
and  Oregon  enumerated  the  instances  at  length  where 

1  E.  (J.,  tlio  preference  of  systematic  or/rauizatiou  and  procedure 
under  general  laws  to  special  enactment. 

^  A  new  Delaware  cons^titiition  (18!t7)  is  just  ordained. 


THE  LEGISLATURE.  265 

general  legislation  should  be  rather  applied;  for 
instance,  in  duties  of  justices  of  the  peace  and  con- 
stables; in  regulating  court  practice  and  the  venue 
of  actions;  in  divorce,  the  change  of  names,  and 
inheritances ;  in  sales  of  the  real  estate  of  minors  and 
insane  persons;  in  laying  out  highways  and  town 
plats;  in  regulating  county  and  township  business; 
in  taxation,  the  support  of  schools,  official  fees  and 
salaries;  as  to  interest  and  usury  and  the  conduct  of 
elections.  Minnesota  just  before  1860  set  an  organic 
rule  relative  to  lending  the  credit  of  the  State  to 
certain  railroads;  and  wearied  of  recent  experience 
in  mingling  State  liability  with  private  enterprises, 
we  see  various  States  prohibiting  thenceforward  all 
debts  of  that  character,  while  arranging  to  sell  out 
the  State  stock  held  in  existing  schemes  of  im- 
provement. Constraints  already  prevalent  upon 
private  incorporation,  and  the  incurring  of  debt. 
State  or  municipal,  increase  rather  than  diminish  as 
the  new  era  progresses.  ^  In  short,  American  State 
constitutions  at  the  present  day  strongly  favor  the 
idea  of  impartiality  towards  all  inhabitants,  and  the 
uniform  operation  of  all  laws  throughout  the  com- 
monwealth to  its  remotest  borders  without  preference 
or  privilege  to  any  men  or  set  of  men. 

If  it  be  objected  that  all  such  hampering  provisions 
show  distrust  of  the  people's  representatives,  that 
distrust  is  generated  by  a  superior  constituency,  con- 
fident of  its  capacity  to  give  instructions.     A  lapse 

1  See  Wisconsin,  1871,  which,  among  other  express  prohibitions 
upon  special  legislation,  names  the  location  or  change  of  county  scats, 
the  apportionment  of  the  school  fund,  the  incorporation  or  charter 
amendment  of  any  town  or  village.  The  Legislature  shall  audit  no 
claim,  but  shall  only  appropriate  after  the  claim  has  been  audited. 
New  York,  1872.  No  extra  compensation  shall  be  voted  to  any  public 
oflScer  or  contractor.     lb. 


266  CONSTITUTIONAL  STUDIES. 

in  character  and  ability  may  be  predicated  usually  of 
our  public  agents  in  times  of  peaceful  routine ;  but 
all  the  while  good  citizens  are  vigilant  and  patriotic, 
and  in  great  emergencies  they  come  to  the  front. 
Public  life  has  no  great  charm  here  with  its  tidal 
changes,  and  men  prefer  the  more  permanent  dignity 
and  emolument  of  private  station.  But  public 
opinion  still  watches  and  influences ;  and  the  average 
community  of  worth  and  intelligence,  with  skilful 
merchants  and  corporate  organizers,  university  in- 
structors and  professional  men,  journalists,  whose 
power  for  good  or  evil  is  immense,  and  farmers  and 
mechanics,  trained  to  intelligence  and  self-reliance, 
form  opinions  on  all  public  questions  as  they  arise 
and  determine  for  themselves  what  should  be  done, 
where  once  they  left  that  determination  to  leaders. 
The  morning  paper  keeps  each  in  touch  with  affairs, 
and  comment  invites  conclusion.  Hence  is  it  that 
the  circle  which  legislates  is  itself  encircled  by  a 
vaster  deliberating  audience,  which  is  quick  to  note 
vicious  tendencies,  and  brings  practical  ingenuity  to 
bear  upon  their  correction.  "The  longer  a  consti- 
tution," it  is  sometimes  argued,  "the  weaker  the 
people,  and  the  more  corrupt  a  community."  Rather 
should  we  say  that,  the  longer  a  constitution,  the 
more  complex  the  public  interests  which  have  to 
be  considered,  and  the  sounder  and  more  confident 
the  people  that  thus  manifest  a  determination  to 
head  off  corruption  and  to  bind  all  lesser  agencies 
by  overmastering  rules.  Scarcely  a  change  has  been 
here  recited  in  legislative  power  and  procedure  which 
is  not,  upon  the  whole,  a  change  for  the  better. 


VI. 

THE  EXECUTIVE. 

The  trend  of  experience  in  American  States  has 
been  since  1789  to  free  the  Executive  of  the  people 
from  the  trammels  of  subordination  which  the  Legis- 
lature once  applied.  Two  results  have  thus  gradually 
come  about:  (1)  that  the  State  chief  magistrate, 
somewhat  after  the  example  of  a  Federal  president, 
brings  a  certain  dignity  and  independence  of  his 
own  to  bear  upon  legislative  action;  (2)  that  the 
Executive,  as  well  as  the  legislator,  feels  an  imme- 
diate dependence  upon  public  opinion,  and  is  equally 
representative  of  the  voters,  though  representing 
officially  the  whole  State,  and  not  a  fraction  or  geo- 
graphical portion  thereof.  And  thus  does  immediate 
and  practical  representation  of  the  people  broaden 
greatly  its  original  base.  All  this  is  very  different 
from  our  American  disposition  in  the  Revolutionary 
age,  for  then  no  bulwark  seemed  too  strong  against 
executive  tyranny,  as  personified  in  the  late  monarch 
or  royal  governors  of  Great  Britain,  and  a  legislature 
seemed  the  sole  refuge  of  public  liberty. 

Now  that  "President"  had  become  the  style  of 
the  Federal  Executive,  States  formerly  employing 
that  designation  dropped  it  for  "  Governor "  on  the 
earliest  opportunity  following  1789. ^ 

The  first  organic  change  noticeable  in  these  com- 
ponent States  after  the  new  Union  went  into  opera- 

1  E.  g.,  Pennsylvania  and  Delaware  before  1800. 


268  CONSTITUTIONAL  STUDIES. 

tion  wns  inevitably  to  deprive  the  legislature  of  its 
primary  choice  of  a  chief  magistrate  where  such  a 
choice  had  formerly  prevailed.  Massachusetts  had 
since  1783  furnished  notably  the  admirable  example 
of  a  State  executive  directly  chosen  by  the  people. 
The  Federal  mechanism,  too,  for  selecting  a  presi- 
dent, though  cumbrous  and  defective  enough,  meant 
at  all  events  an  escape  for  Federal  government  from 
the  incubus  of  primary  selection  by  Congress.  In 
the  new  State  of  Kentucky,  therefore,  public  opinion 
worked  rapidly  in  the  new  direction.  At  once  dis- 
carding the  mother-State  practice  of  choosing  a  gov- 
ernor by  the  Legislature,  that  State  tried  in  1792 
the  quasi  Federal  expedient  of  a  choice  by  special 
(senatorial)  electors;  but  by  1799  this  choice  was 
transferred  to  the  people.  Pennsylvania,  Vermont, 
Delaware,  and  Tennessee,  during  the  last  ten  years 
of  the  eighteenth  century,  concurred  in  the  test  of 
election  by  popular  suffrage  under  their  new  organic 
law.^  Ohio  again  in  1802  gave  the  choice  of  State 
Governor  to  the  people;  Louisiana,  the  next  new 
State,  making  a  strange  compromise  instead,^  which, 
by  1845,  gave  way  to  popular  elections  conformable 
to  American  State  practice  elsewhere.  As  the  nine- 
teenth century  passed  its  first  quarter,  old  States, 
such  as  Georgia,  North  Carolina,  and  Connecticut,^ 
in  framing  new  constitutions,  were  seen  conforming 
to  this  principle;  Virginia,  however,  in  1830  still 
keeping  to  its  Revolutionary  mode  of  legislative 
choice  of  a  governor.     New  States  meanwhile  were 

1  But  Georgia,  in  1798,  adhered  to  choice  by  the  Legislature;  and 
so  did  South  Carolina,  1790. 

2  A  legislature  fresh  from  the  people  was  to  ballot  from  the  two 
highest  candidates  voted  for  at  the  polls.     Louisiana,  1812. 

*  Connecticut  had  long  pursued  this  popular  plan  under  her  charter 
government,  prior  to  tlie  constitution  of  1818,  wliich  emanated  from 
the  people. 


THE  EXECUTIVE.  269 

invariably  conferring  the  choice  of  chief  magistrate 
upon  the  people,  under  their  successive  instruments. 
A  plurality  choice,  moreover,  by  the  people  (which 
must  almost  invariably  result  in  a  positive  selection 
between  candidates  on  a  single  trial  at  the  polls) 
found  strong  proselytes  before  the  last  century  ended, 
since  evidently  the  larger  fraction  of  public  support 
is  the  safest.  Of  States  so  committed  before  1800 
were  Pennsylvania,  Delaware,  and  Tennessee.  Ohio 
opened  the  new  century  with  a  State  constitution  of 
1802,  which  announced  the  same  rule,  since  almost 
universal.  American  practice  had  formerly  favored 
the  idea  that  wherever  a  majority  of  voters  was 
requisite,  the  eventual  choice  from  among  the  highest 
candidates  should  revert  to  the  State  Legislature,  if 
the  people  elected  no  one,  since,  in  so  essential  a 
department  of  government,  time  ought  not  to  be 
wasted  over  further  trials  at  the  polls.  ^  And  to  this 
older  rule  some  of  our  original  States  adliered  during 
the  first  half  of  the  nineteenth  century,  —  Maine, 
on  her  separation  from  Massachusetts  in  1820,  still 
retaining  it. 

Federal  example  now  favored  an  increase  in  length 
of  the  executive  term,  so  as  better  to  promote  inde- 
pendence, experience,  and  stability  in  each  incumbent 
of  the  office,  formerly  chosen  annually.  Four  years 
was  the  term  fixed  upou  by  Kentucky  in  1799,  and 
in  1812  by  Louisiana.  Three  years,  somewhat  earlier, 
had  Pennsylvania  and  Delaware  established  it  by 
way  of  change,  while  South  Carolina,  Georgia,  and 
Tennessee,  between  1790  and  1800,  made  two  years 
their  preference.     Ohio,  in  1802,  fixed  the  tenure  at 

*  See  Vermont,  1793;  supra,  page  60  The  constitution  of  the 
United  States  still  retains  this  antiquated  feature  of  eighteenth-century 
instruments. 


270  CONSTITUTIONAL   STUDIES. 

two  years,  and  various  other  States  followed  with  the 
same  limit.  But  Vermont,  faithful  to  New  England 
tradition  in  this  respect,  pronounced  upon  her  ad- 
mission^ for  annual  elections;  nor  did  Connecticut 
vary  her  ancient  rule  in  that  respect  when  supersed- 
ing, after  the  War  of  1812,  her  colonial  charter. 
Outside  New  England,  however,  the  tendency  for 
longer  terms  of  office  and  less  frequent  elections  was 
soon  unmistakable.  New  York,  Virginia,  and  North 
Carolina  all  speeding  before  1835  in  that  direction, 
and  new  States  taking  the  same  current  almost  in- 
stinctively. In  short,  by  the  present  day,  not  a  State 
governor  can  be  found  outside  of  New  England 
whose  term  of  office  is  not  at  least  two  years ;  while 
about  half  of  our  State  executives  are  chosen  rather 
for  three  or  four  years. ^ 

Re-eligibility  to  supreme  office  was  restrained  by 
various  jealous  instruments  of  the  earlier  epoch;  yet 
that  restraint  appears  almost  invariably  to  have  been 
partial  only,  and  so  as  to  permit  of  one's  re-election 
for  a  specified  number  of  years  out  of  some  longer 
stated  period,  or  after  the  expiration  of  so  many 
years  in  retirement.  Delaware  in  1831,  while  raising 
the  executive  term  from  three  to  four  years,  declared 
the  Governor  re-ineligible  altogether,  —  a  constraint 
which  appears  at  this  day  quite  abnormal  in  the 
American  system.^ 

Organic  tests  for  such  station  were  not  long  kept 
up  after  1789.  Pennsylvania,  Delaware,  Vermont, 
and  Kentucky,  among  States  framing  new  or  original 
constitutions  towards  the  close  of  the  last  century, 
dispensed  liberally  with  both  religious  and  property 
qualifications.  Maryland  in  1810  abolished  all  prop- 
erty qualifications,  whether  for  executive  office  or 
the  Legislature;  and  Ohio  in  1802  entered  the  Union 

1  1793.  2  Davis,  Tables,  page  67.  ^  lb. 


THE  EXECUTIVE.  271 

free  of  all  such  impositions.  Tennessee  in  1834 
abolished  the  freehold  qualification  for  Governor. 
Towards  the  middle  of  the  present  century  new  con- 
stitutions and  new  States  usually  ignored  both  prop- 
erty and  religious  tests.  On  the  other  hand,  the 
constitution  of  South  Carolina  had  exacted  property 
of  the  value  of  £1500;  that  of  Tennessee  a  freehold 
of  five  hundred  acres;  that  of  New  Hampshire, 
besides  property,  that  the  Governor  should  be  of  the 
Protestant  religion ;  ^  while  Louisiana  in  1812  required 
landed  property  worth  five  thousand  dollars.  New 
York's  constitution  of  1821,  with  all  its  popular 
innovations  in  other  respects,  maintained  for  Gov- 
ernor the  former  freehold  requirement.  North 
Carolina,  when  revising  her  instrument  in  1835,  still 
disqualified  atheists  from  the  office,  and  required 
property  to  a  moderate  limit.  But  now  in  1846  New 
York  abolished  her  freehold  qualification  for  Gov- 
ernor once  and  forever.  Other  old  States  instituted 
similar  changes,  while  States  newly  organized  one 
and  all  disregarded  tests  of  property  peculiarly  un- 
suitable to  their  simple  condition.  New  Hampshire 
abolished  all  freehold  and  property  qualifications  in 
1852,  and  so  had  Massachusetts  done  for  members  of 
the  Legislature,  though  for  many  years  longer  this 
latter  commonwealth  exacted  of  its  Governor  a  free- 
hold in  his  own  right  worth  XI,  000,  and  only  in 
1892  was  this  old  test  stricken  out  by  vote  of  the 
people. 2  But  residence  remains  an  essential  quali- 
fication in  the  States.  The  resident  qualification 
was  somewhat  stringent  in  constitutions  of  the  eigh- 
teenth  century,    aside   from   that  of   United   States 

^  See  State  constitutions,  1790-1800. 

2  This  text  requirement  of  1780  had  probably  escaped  notice  for 
many  years.  Governor  W.  E.  Russell  at  length  called  attention  to 
the  anomaly,  and  an  amendment  was  readily  carried. 


272  CONSTITUTIONAL  STUDIES. 

citizenship.  Thus  seven  years'  residence  in  the 
State  was  the  test  in  Pennsylvania,  and  ten  in  South 
Carolina.  A  lesser  term  of  State  residence,  such 
as  six  or  four  years,  gained  preference  in  the  fii"st 
quarter  of  this  nineteenth  centuiy,^  and  the  tendency 
has  since  been  more  liberal  still.  "A  native  citizen 
of  the  United  States,"  following  Federal  precedent, 
several  important  States  insisted  upon  early  in  this 
century,  and  various  others  embody  now  the  same 
idea.''^  Disqualified  classes  have  been  announced  from 
time  to  time  in  certain  constitutions;  membei'S  of 
Congress,  for  instance,  State  or  United  States  officials, 
or  ministers  of  religion.  The  Governor  must  not 
hold  during  his  term  any  other  office  of  profit.^ 

The  colonial  appendage  of  an  executive  privy 
council  or  directory  began  by  1789  to  fade  out  in  the 
old  thirteen  States ;  while  States  newly  admitted  and 
having  no  early  custom  in  this  respect  chose  to 
dispense  quite  generally  with  the  encumbrance.^ 
Special  functions  of  the  old  executive  sort  were  for 
the  future  left  rather  to  a  specific  Senate,  as  under 
the  Federal  system.  Even  in  New  England  States 
which  retained  expressly  that  "council"  feature  of 
the  executive  branch,  the  choice  of  councillors  became 
transferred  to  the  people  by  districts,  in  place  of  the 
early  legislative  selection.^  Virginia  in  1830  reduced 
her  Revolutionary  "council  of  State,"  and  applied  to 
that  body  a  plan  of  rotation,  but  abolished  the  whole 
council  finally  in  1850  as  Maryland  had  done  in  1837. 
Maine  in  1820  followed  the  parental  example  of 
Massachusetts  in  establishing  a  permanent  executive 
council.     Connecticut,    on   the    other  hand,   merged 

1  Louisiana,  1812;  Ohio,  1802. 

2  New  York,  Virginia,  Alabama,  Missouri  (1821-1835). 

3  Maryland,  1809. 
*  Supra,  page  61. 

^  See  Massachusetts,  amendment,  1840. 


THE  EXECUTIVE.  273 

her  council  fully  in  the  Legislature  as  an  upper 
branch  in  1818 ;  while  Vermont,  beginning  statehood 
with  such  a  body,  abolished  it  in  1836.  Rhode 
Island's  constitution  of  1842  dispenses  with  an 
executive  council.  After  1850,  therefore,  Maine, 
New  Hampshire,  and  Massachusetts  became  and 
since  remain  the  only  States  of  the  Union  which  still 
maintain  that  old  excrescence  of  colonial  rule  by 
Great  Britain. ^ 

Lieutenant-Governor  was  recognized  in  the  new 
constitutions  of  Kentucky,  Vermont,  and  South 
Carolina  at  the  close  of  the  eighteenth  century ;  while 
Pennsylvania,  Delaware,  and  Tennessee  left  that 
official  out  of  their  new  or  remodelled  instruments 
during  the  same  period,  as  also  did  Ohio  and  Louisiana 
early  in  the  nineteenth  century.  During  the  first 
half  of  the  present  century  new  States,  without  sec- 
tional distinction,  seem  to  have  divided  their  prefer- 
ences nearly  evenly  in  respect  of  setting  up  such  an 
office;  but  towards  1850  the  drift  set  strongly  in 
favor  of  lieutenant-governors,  several  old  States 
changing  their  former  constitutions  to  that  intent. 
Ohio  in  1851  established  that  office  after  half  a  cen- 
tury's experience  without  it.  A  lieutenant-governor, 
wherever  recognized  in  State  instruments,  was  now 
to  130  chosen  by  the  people  like  the  Governor;  and 
so  long  as  no  vacancy  in  the  chief  office  occurred  for 
his  advancement,  his  chief  duty  was  to  preside  over 
the  State  Senate.  Wherever,  indeed,  such  executive 
functionary  was  dispensed  with,  under  a  State  con- 
stitution, the  President  of  the  Senate  supjflied  his 
place. 2    Perhaps  the  political  convenience  of  a  double- 

1  North  Carolina,  however,  recognizes  a  peculiar  "  council,"  much 
like  a  Federal  cabinet,  and  consisting  of  the  heads  of  the  chief  depart- 
ments, 1876. 

2  Delaware  (1897)  lias  just  changed.  Utah's  constitution  (189.'i) 
designates  a  governor,  but  no  lieutenant-governor. 

18 


274  CONSTITUTIONAL  STUDIES. 

headed  ticket  at  the  polls,  to  attract  voters  and  invite 
combinations  for  party  support,  has  more  to  do  with 
the  popularity  of  this  vice-executive  than  any  solici- 
tude over  the  possible  vacancy  that  may  promote  him 
to  full  power.  Concentration  of  the  voting  interest 
on  an  individual  candidacy  had,  on  the  other  hand, 
been  thought  in  earlier  times  the  surest  pledge  for 
bringing  the  best  man  into  supreme  office. 

It  became  common  after  1789  to  adapt  for  new  or 
reorganized  State  governments  various  provisions 
relative  to  the  executive  department  which  our 
Federal  constitution  had  set  forth  in  a  corresponding 
connection.  Thus  the  Governor's  salary  was  not  to 
be  increased  during  his  existing  term  of  office.  He 
was  to  take  heed  that  the  laws  were  properly  executed. 
He  was  empowered  to  convene  the  Legislature  on 
extraordinary  occasions,  and  at  every  session  of  that 
body  was  to  communicate  public  information  and 
recommend  public  measures  by  message.  He  might 
adjourn  the  Legislature  where  the  two  houses  could 
not  agree.  He  was  of  course  commander-in-chief  of 
the  State  militia,  though,  as  some  States  provided 
further,  he  should  not  command  in  the  field  person- 
ally save  upon  request  of  the  Legislature.  He 
might  require  information  or  advice  in  writing  from 
his  chief  subordinates. 

The  }>ardouing  power,  either  absolute  or  limited,  is 
conferred  upon  the  Governor  by  the  constitutions  of 
almost  every  State  in  the  Union ;  ^  and  the  phrase  of 
the  Federal  constitution  (whicli  includes  reprieves) 
supplies  the  usual  text  in  this  respect.^     But  some 

^  Cuunecticut  ;ipi)earH  to  fnniisli  tlie  only  real  cxceijtioii  at  the 
present  day,  agreeably  to  local  tradition. 

2  Delaware,  in  18.31,  rcqnired  tlie  novornor  to  lay  li is  reasons  for 
each  ))ard()n  before  the  Senate.  Varions  States  have  since  adopted  a 
similar  rule.     He  must  send  in  to  the  Legislature  a  specific  list  of  the 


THE  EXECUTIVE.  Tlh 

States  require  the  advice  of  the  Senate  to  such  an 
exercise ;  ^  and  occasional  reservations  are  made 
besides  the  Federal  exception  of  impeachment,  par- 
ticularly in  the  offence  of  State  treason.  In  Con- 
necticut the  Governor  can  merely  reprieve  until  the 
end  of  an  ensuing  session  of  the  Legislature,  while 
the  Legislature  alone  can  pardon. 2  New  Jersey  in 
1844  set  up  a  judicial  committee  on  pardons  to  re- 
strain the  Governor's  free  exercise  of  the  power;  and 
in  Massachusetts  the  Governor's  Council  takes  like 
cognizance  of  his  action. ^  But  no  remission  of  court 
fees  or  of  a  debt  due  the  State  shall  be  made  in  par- 
doning ;  *  public  notice  of  aj)plication  shall  be  given 
before  a  pardon  is  granted,^  and  the  Legislature  may 
regulate  as  to  the  manner  of  applying.  ^ 

Among  other  provisions  are  these.  The  Governor 
shall  send  a  message  to  the  Legislature  with  recom- 
mendations at  the  close  of  his  official  term.'^  And 
having  a  considerable  power  usually  to  appoint,  he 
must  nominate  to  the  Senate  Avithin  fifty  days  after 
the  Legislature  assembles  in  session.^  No  person 
once  rejected  by  the  Senate  shall  be  nominated  again 
unless  at  the  Senate's  request,  nor  appointed  to  the 
same  office  during  a  recess.^  Maryland  in  1851 
authorized  the  Governor  to  remove  minor  officers 
summarily  for  incompetency  or  misconduct.  And 
so  favorably  has  such  provision  been  since  regarded 

pardons  grantoil,  togetlier  Avitli  his  reasons  iu  each  case.  Wisconsin, 
1848,  mo<lifying  New  York,  184C. 

1  Louisiana,  1812;  Rhode  Island,  1854. 

"  Connecticut,  1818. 

^  See  also  Indiana,  18.51. 

*  Kentucky,  1850;  Maryhuid,  1851. 

"">  Maryland,  1851. 

c  New  York,  1846. 

7  Michigan,  1851. 

8  Maryland,  1851. 

9  76. 


276  CONSTITUTIONAL   STUDIES. 

elsewhere  that  at  this  day  the  Governor  in  New  York 
and  various  other  States  has  enlarged  power  over  the 
high  officials  under  him,  even  such  as  the  Secretary 
of  State  and  Treasurer,  especially  where  corruption  or 
gross  neglect  of  duty  is  alleged,  and  may  examine 
and  report  to  the  Legislature  concerning  the  facts, 
and  meanwhile  suspend  temporarily  the  accused 
person  from  office.^ 

As  for  the  veto  power,  this,  too,  is  generally 
bestowed  in  the  several  States  upon  the  chief  mag- 
istrate, according  to  the  Federal  principle  which 
originated  in  Massachusetts.^  An  absolute  executive 
veto,  to  be  sure,  has  been  unrecognized  in  America 
since  the  days  of  royalty ;  but  a  qualified  veto  by  the 
Governor  appeals  to  the  second  thought  of  the  Legis- 
lature, whose  two  houses  may  by  a  sufficiently  large 
vote  on  reconsideration  pass  the  measure  in  question 
to  take  effect,  notwithstanding  the  official  objections. 
Two-thirds  of  a  quorum  constitutes  usually  that  suffi- 
cient vote  agreeably  to  Federal  and  Massachusetts 
precedent;^  but  a  few  States  set  this  requirement  at 
three-fifths;'*  while  a  rule  which  has  gained  much 
favor  in  the  Union  during  the  present  century  pre- 
scribes for  each  house  a  proportion  of  all  the  members 
elected,  in  order  to  override  a  veto."  In  four  of  the 
United  States  at  least  the  Governor  has  no  real  veto 
power  at  all,  but  at  most  can  only  require  the  Legis- 
lature to  reconsider  its  action.^     Vermont  in  the  last 

1  See  Michigan,  1862;  New  York,  1846,  and  amendments. 

2  Supra,  page  62. 

8  Georgia  and  Now  Hampshire  (1790-1800). 

*  See  N(<hraska,  Maryland. 

^  See  sitjira,  page  257 ;  Kentucky,  1799,  and  many  new  States  (1820- 
1835). 

"  Davis,  Constitutions,  Table,  page  67.  Rhode  Lsland,  Delaware, 
North  Carolina,  and  Ohio.  South  Carolina's  former  constitution  (1790), 
was  to  the  same  effect.  Ohio  never  granted  a  veto  power  to  the 
Governor. 


THE  EXECUTIVE.  277 

century  constituted  the  Governor  and  Council  a  board 
of  concurrence  in  legislation  with  power  to  return  a 
bill  or  propose  amendments,  which,  if  not  agreed  to 
by  the  Assembly,  effected  a  suspension  of  the  bill 
until  the  next  legislature.  The  Vermont  Legisla- 
ture was  then  a  single-chambered  body;  and  after 
the  radical  reforms  of  1836  in  that  State,  when  the 
council  wholly  disappeared,  the  Governor,  no  longer 
thus  encumbered,  assumed  normal  relations  with  a 
legislature  which  consisted  of  two  houses  from  that 
time  forward.  A  mere  reconsideration  and  passage 
at  discretion  is  the  practical  effect  of  an  executive 
veto,  under  a  few  constitutions  of  this  century; 
that  of  Connecticut  in  1818,  for  instance,  which 
permits  the  majority  of  a  quorum  to  finally  pass  a 
bill,  whether  before  or  after  an  executive  veto;  and 
New  Jersey  in  1814  requiring  a  majority  of  all  elected 
in  either  branch  to  pass  a  bill,  whether  first  or  finally. 
"  Two-thirds  of  all  elected  "  is  the  rule  prescribed  in 
some  other  States  for  overriding  a  veto,  though  not 
for  original  passage  of  a  bill. ^  The  "pocket  veto," 
where  a  legislature  adjourns  before  giving  the  chief 
magistrate  his  full  time  to  consider,  is  further  allowed 
in  most  States,  after  the  F'ederal  example;  and 
Massachusetts  in  1822  added  that  feature  expressly 
to  her  organic  provision  of  1780,  to  make  the  veto 
power  complete.  At  the  present  day,  under  State 
constitutional  provisions  dating  for  the  most  part 
later  than  the  Civil  War,  a  governor  may  consider 
and  decide  whether  or  not  to  veto  any  act  of  the 
Legislature  for  a  prescribed  period  after  the  session 
adjourns.  And  in  not  less  than  thirteen  States  he 
may  also  veto  particular  items  in  appropriation  acts, 
leaving  the  residue  to  stand  unimpaired  unless  pre- 
ferriner   to  veto  the  whole  act.^     Bills  thus  vetoed 

1  Michigau,  1850;  Kansas,  1859.         -  Davis,  Tables  (1884),  67. 


278  CONSTITUTIONAL  STUDIES. 

after  adjournment  are  sent  to  the  next  session  of  the 
Legislature. 

Louisiana's  first  constitution^  required  the  Gov- 
ernor to  visit  the  different  counties  of  the  State  at 
least  once  in  two  years,  so  as  to  keep  informed  of  the 
military  and  general  condition  of  the  State.  Rem- 
nants of  the  ampler  executive  functions  of  Revolution- 
ary times  appeared  for  a  while  in  new  constitutions 
of  the  original  commonwealths.  That  of  South  Caro- 
lina, for  instance,  in  1790  authorized  the  Governor  to 
put  an  embargo  not  exceeding  thirty  days  upon 
the  exportation  of  provisions,  and  Vermont  in  1793 
authorized  embargoes ;  while  the  text  of  the  Massa- 
chusetts instrument  to  this  day  preserves  unaltered 
the  pompous  enumeration  of  a  governor's  martial 
prerogatives,  as  in  the  old  days  of  State  sovereignty, 
or  earlier  still,  of  charter  government. 

The  legislatures  of  the  old  thirteen  States  parted 
reluctantly  with  that  public  patronage  of  which 
State  organic  law  at  once  began  to  deprive  them. 
Lesser  official  appointments  were  before  1812  given 
by  various  new  constitutions  to  the  Governor,  with 
perhaps  the  added  advice  and  consent  of  Senate  or 
Council.  Secretary  of  State  and  Attorney-General 
were  thus  transferred  from  the  Legislature  for  choice 
accordingly.  But  the  State  Treasurer  was  still  to 
be  chosen  annually  by  the  joint  vote  of  tlie  Legisla- 
ture, under  many  such  constitutions,  and  so  was  it 
with  the  State  auditor,  the  State  printer,  and  not 
imfrequently  with  the  Secretary  of  State. ^  Ohio  and 
Louisiana^  left  the  appointment  of  all  other  civil 
officers  to  be  directed  by  law.     Town  officers  were  to 

1  1812. 

2  See  Pennsylvania,  Delaware,  Kentucky,  New  Hampshire  (1790- 
1800);  Ohio,  1802. 

''  Ohio,  1802;  Louisiana,  1812. 


THE  EXECUTIVE.  279 

be  chosen  annually  by  the  people.  With  regard  to 
State  militia,  the  new  State  of  Ohio  in  1802  followed 
New  England  precedent,  leaving  the  line  and  most 
field  officers  to  be  chosen  by  those  who  served  under 
them,  while  generals  were  to  be  elected  by  the  Legis- 
lature. With  a  truer  military  instinct  for  emergen- 
cies, Louisiana,  when  admitted  next  in  1812,  gave 
the  Legislature  full  discretion  for  organizing  the 
militia.  Vermont's  State  Treasurer  was  required  to 
settle  his  accounts  yearly.^  South  Carolina  made 
provision  for  two  Treasurers,  —  one  to  officiate  at 
Charleston,  and  the  other  at  the  State  capital.^ 
Pennsylvania  in  1838  required  the  State  Senate  to 
sit  with  open  doors  upon  appointments  to  office,^  and 
to  confirm  or  reject  by  yea  or  nay  vote  all  nomina- 
tions sent  in  by  the  Governor;  w^hich  provision, 
approved  by  experience,  reappeared  in  the  later 
constitution  of  1873. 

The  best-laid  schemes  of  State  organizers  for 
thwarting  the  popular  control  of  affairs,  or  trying 
strange  experiments,  have  ignominiously  failed  in 
this  country,  and  sooner  or  later  the  fetters  of  timid 
expediency  are  broken.  Thus,  Louisiana's  first  ex- 
periment in  1812  of  making  each  popular  vote  for 
Governor  a  dual  presentation  of  candidates  to  the 
Legislature  and  nothing  more,*  merged  by  1845  into 
a  plurality  choice  at  the  polls  and  popular  supremacy 
in  such  elections.  A  governor  for  four  years  with 
the  liberal  official  patronage  which  this  Louisiana 
constitution  had  bestowed  must  have  been  sorely 
beset  for  pledges  meanwhile,  when  a  legislature  had 

1  Vermont,  1793. 

2  South  Carolina,  1790. 

^  (/ontrary  to  senatorial  practice  in  Congress. 

*  A  Pennsylvania  device  of  the  preceding  century,  Lut  differently 
applied. 


280  CONSTITUTIONAL  STUDIES. 

power  to  select  his  rival  candidate  in  liis  stead.  Not 
less  temporary  was  the  electoral  college  expedient  of 
the  last  century,  so  far  as  States  experimenting  mth 
it  ^  were  concerned,  though  in  our  Federal  constitu- 
tion it  remains  beyond  the  easy  reach  of  reform. 
New  York's  absurd  "council  of  ax)pointment, "  under 
the  instrument  of  1777,^  reached,  indeed,  the  zenith 
of  plunder  and  party  favoritism  in  awarding  the  public 
patronage  of  that  rising  State,  when  the  crafty  con- 
vention of  1801  in  that  State  (a  convention  whose 
work  was  never  submitted  to  the  people)  defined  that 
council  as  in  effect  a  directory,  where  the  Governor, 
like  any  other  member,  must  yield  to  the  action  of 
its  majority.  The  more  popular  constitution  of  1821 
in  the  Empire  State  swept  out  that  conclave  of 
patronage,  and  gave  the  nominating  power  to  the 
Governor  alone,  like  other  commonwealths.  And 
by  that  same  later  constitution  was  displaced  the 
anomalous  "council  of  revision"  of  1777,  so  that  the 
Governor's  veto  henceforth  conformed  in  New  York 
to  the  usual  mode  of  making  a  chief  magistrate 
solely  responsible  for  revising  the  acts  of  a  legisla- 
ture.^ Illinois,  adopting  from  New  York  in  1818 
this  same  "council  of  revision,"  dropped  it  not  less 
emphatically  in  18  48, for  the  Governor's  power  to  veto. 
The  Maryland  convention  of  1851,  while  raising 
the  official  term  from  one  to  four  j^ears,  applied  a 
singular  expedient  of  rotation  to  the  selection  of  chief 
magistrate.  The  State  was  now  divided  into  three 
distinct  districts,  one  of  which  comprised  the  area  of 
the  eastern  shore,  and  another  the  Baltimore  region, 
and  it  was  prescribed  that  the  Governor  sliould  be 
taken  in  rotation  from  each  district.     Once  more  polit- 

1  Marylanil  and  Kentucky,  supra,  page  252. 

2  Supra,  page  03. 

^  New  York's  cun.stitutiou  of  1821  was  .submitted  to  the  people  and 
ratified  at  the  pulls. 


THE  EXECUTIVE.  281 

ical  ingenuity  for  abnormal  government  defeated  its 
own  ends,  for  when  the  constitution  of  1864  went  into 
effect  the  device  was  dropped.  So,  too,  did  Marj^- 
land  in  this  1851  instrument  undertake  to  dispense 
with  an  attorney-general,  by  allowing  the  Governor 
to  employ  special  counsel  instead,  at  a  recompense  to 
be  fixed  by  the  Legislature;  but  in  1864  the  old 
public  office  was  restored. 

While  the  modern  tendency  in  the  United  States 
has  constantly  been  to  give  to  the  Chief  Executive 
greater  independence  of  the  Legislature,  greater 
official  discretion,  than  in  earlier  times,  none  the 
less  positive  has  been  political  progression  towards  the 
popular  control  of  that  great  department.  But  for 
the  remarkable  growth  of  particular  States  in  wealth 
and  numbers,  and  a  corresponding  spread  and  increase 
of  public  concerns  and  patronage  as  incidental  to 
supreme  office,  the  dependence  of  the  Governor  upon 
his  State  constituency  would  by  tliis  time  have  be- 
come strikingly  apparent.  About  the  middle  of  the 
nineteenth  centurj^.  State  organic  law  tended  clearly 
to  submitting  the  choice  of  executive  subordinates  as 
well  as  principals  —  all,  in  fact,  of  the  great  officers 
of  the  commonwealth  —  to  the  suffrage  of  the  voters 
at  large,  rather  than  leave  such  selections  longer  to 
either  Governor  or  Legislature.  New  York  in  1846 
took  a  prominent  lead  in  that  direction;  Massachu- 
setts in  1855  followed.  Other  important  States 
earlier  or  later  wrought  that  important  change  in 
existing  institutions  or  embodied  the  principle  in 
instruments  framed  upon  their  first  admission  to  the 
Union.  Under  such  organic  provisions  we  now  find 
Secretary  of  State,  Attorney-General,  Auditor,  and 
Treasurer  elected  by  the  people  in  most  States.^ 

1  Michigan,  Louisiana,  California  (1835-1849). 


282  CONSTITUTIONAL   STUDIES. 

Names  of  new  subordinate  officials  described  in 
State  constitutions  attest  the  expansion  of  govern- 
ment still  further,  —  State  superintendent  of  public 
education,  State  engineer  and  surveyor,  and  the 
like.^  County  as  well  as  municipal  officers  were  by 
the  mid'^^:".  of  this  century  chosen  more  generally  than 
before  by  the  respective  constituencies  concerned;^ 
among  them,  county  clerks,  treasurers,  and  registers. 
But  in  the  more  populous  States  a  great  growth  of 
public  patronage  is  traceable,  which  remains  subject 
to  executive  appointment  under  the  usual  limitations, 
on  lines  defined  by  the  State  constitution;  and  com- 
missions or  boards,  with  a  rotating  membership,  have 
come  prominently  into  notice."^ 

As  for  State  elections  generally  to  high  executive 
honors,  the  people  by  their  plurality  vote  decide  the 
choice  between  candidates  at  the  ballot-box.  Virginia 
in  1850  abandoned  deliberately  for  the  Governor 
that  time-honored  method  of  legislative  selection 
which  had  promoted  to  the  chief  magistracy  such 
sons  and  patriots  as  Henry,  Jefferson,  and  Monroe  in 
less  degenerate  days.  But  South  Carolina  alone  of 
American  commonwealths  remained  aristocratic  in 
structure  down  to  the  Civil  War,  unchanged  by  the 
influences  about  her.  There  an  aristocratic  legisla- 
ture, in  which  planters  and  landowners  held  the 
preponderating  force,  chose  tlie  Governor,  cast  the 
votes  for  Presidential  electors,  and  controlled  all 
legislation  and  public  patronage  of  the  State.  But 
to  the  rule  of  popular  choice  there  is  now  no  State 
exception. 

1  New  York,  1846. 

2  As  to  jiulicial  oflioers,  etc.,  see  next  chapter. 

'  See  canal  commi.isioners,  codifying  coinmissionerg,  inspectors  of 
prisons,  etc.,  in  New  York's  conslitutiou  of  1846,  among  the  earliest 
organic  examples. 


VII. 

THE  JUDICIARY. 

The  usual  pattern  for  a  State  judiciary  in  these 
modern  times  may  be  studied  in  the  specific  require- 
ments of  each  fundamental  State  instrument.  Com- 
parison shows  that  the  highest  State  tribunal  (styled 
sometimes  a  "court  of  appeals"  and  sometimes  a 
"supreme  court")  is  composed  usually  of  a  few  indi- 
viduals, often,  indeed,  of  only  three,  who  can  so  group 
as  to  supply  a  majority  for  deciding  each  case ;  and, 
elected  each  by  the  people  at  large,  such  members 
rotate,  and  the  court  changes  gradually. ^  Inferior 
courts,  arranged  naturally  by  counties,  though  not 
unfrequently  by  arbitrary  geographical  districts, 
have  their  own  judges  for  the  burden  of  original  liti- 
gation and  appeals  from  the  primary  tribunals;  while 
judges  of  municipal  or  police  courts  and  justices  of 
the  peace  take  jurisdiction  of  petty  matters  civil  and 
criminal  in  the  first  instance.  Georgia  was  singularly 
tentative  as  a  State  for  a  long  time  on  this  matter  of 
a  judicial  establishment;  inferior  tribunals  shared 
public  favor  with  courts  merchant ;  nor  was  it  until 
1835  that  a  supreme  court  was  recognized  at  all  in 
her  constitution.  Legislative  discretion  in  the  erec- 
tion of  courts  has  within  a  hundred  years  been  largely 
curtailed;   and   in   these   days   a   State   constitution 

^  In  some  late  constitutious  a  prospective  increase  of  judges  is  pro- 
vided for  when  the  population  reaches  a  certain  limit.  North  Dakota 
(1889). 


284  CONSTITUTIONAL  STUDIES. 

generally  defines  fully  the  judicial  system.  Chancery 
courts  with  special  chancellors  and  a  special  equity 
jurisdiction  prevailed  largely  in  tlie  middle  tier  of 
old  Atlantic  States ;  while  New  England  cherished  a 
dislike  of  such  establishments.  But  since  1840  the 
fusion  of  law  and  equity  in  American  practice,  \ai\\ 
a  common  jurisdiction  for  last  resort  in  the  highest 
appellate  tribunal  of  the  State,  has  been  almost  every- 
where accomplished,  thus  unifying  the  two  systems 
as  England  also  inclines.  ^  Divorce  and  matrimonial 
jurisdiction  has  been  taken  away  altogether  from  the 
Legislature;  probate  or  orphans'  courts  are  erected 
for  the  several  counties ;  and  the  former  participation 
of  Executive  or  Senate  in  judicial  business,  some- 
what after  the  English  fashion  of  a  House  of  Lords, 
has  been  completely  excluded. 

The  well-established  rule  of  the  mother  country, 
that  judges  should  hold  office  during  good  behavior, 
was  the  usual  rule  in  America  when  our  Federal 
constitution  was  adopted.  ^  That  constitution,  as  we 
have  noticed,  still  preserves  the  English  principle, 
well  justified  by  the  high  renown  of  its  long  line  of 
honorable  incumbents,  who,  once  promoted  to  the 
bench,  have  dismissed  all  other  ambition  so  as  to 
devote  themselves  faithfully  and  unreservedly  to  the 
administration  of  justice  for  the  rest  of  their  activity 
in  life.  No  rule  suits  so  well  this  delicate  adjust- 
ment to  the  whole  Union.  So,  too,  for  many  years, 
States,  new  or  old,  kept  for  the  most  part  to  this 
same  rule  of  judicial  incumbency.  In  all  the  later 
constitutions  of  the  eigliteenth  century,  save  that  of 

1  New  York,  in  1846,  so  reorf^auized  the  State  Judiciary  as  to  place 
a  court  of  ap])oals  above  tlic  Supremo  Court,  abolish  tlic  office  of  clian- 
cellor,  and  blend  law  and  equity  functions.     See  page  C6. 

Cliancery  jurisdiction  was  similarly  abolished  (1851-1856)  in  Mary- 
land and  Mississippi. 

2  Supra,  page  65. 


THE  JUDICIARY.  285 

Georgia  alone,  good  behavior  continued  the  tenure,- 
that  State  of  little  traditional  deference  to  judges  or 
case  law,  permitting  in  1789  only  a  three  years' 
incumbency  in  its  "superior"  (then  the  highest) 
tribunal.  1  For  a  new  example,  Ohio  entered  the 
Union  in  1802,  prescribing  a  seven  years'  term  of 
judicial  office;  but  Louisiana,  next  in  1812,  sanc- 
tioned the  conservative  rule  of  good  behavior.  The 
latter  standard  was  maintained  much  longer;  but  con- 
stitutions of  the  next  generation  began  formulating 
the  theory  of  "a  fixed  term"  for  every  public  office, 
as  though  in  a  true  democracy  no  citizen  should 
claim  therein  a  vested  right.  Tennessee,  by  1834, 
and  Indiana,  as  early  as  1816,  affixed  accordingly  a 
tenure  of  years  to  the  judicial  office.  Virginia  in 
1850  enlarged  the  phrase  of  her  famous  "Bill  of 
Rights  "  so  as  to  read  that  "all  elections  "  (those  of 
judges  included  by  inference)  "shall  be  free."^ 

The  New  Hampshire  constitution  had  fixed  the 
rigid  limit  of  seventy  years  of  age  for  judicial  capac- 
ity to  serve,  ^  and  a  few  other  States  now  adopted 
such  a  limit,*  New  York  narrowing  it  long  before  to 
sixty.^  But  such  had  been  the  recognized  need  for 
the  bench,  of  men  upright  and  honest,  diligent 
and  skilled  in  their  profession,  inspiring  confidence 
in  the  whole  community,  that  property  qualifications 
for  a  judge  were  dispensed  with  by  general  consent  ^ 
from  the  earliest  days  of  American  independence,  and 
probably  earlier.     Some  of  our  more  modern  consti- 

1  Cf.  Georgia  coustitutions,  1789,  1798,  etc.  Under  Georgia's  con- 
stitution of  1798,  the  inferior  court  judges  held  for  good  behavior;  but 
that  tenure  was  in  1812  reduced  to  four  years. 

2  See  page  32. 

3  And  for  sheriffs  also,  1792. 

*  Connecticut,  1818;  Maine,  1820. 

^  See  page  6.').     Mi.ssouri   (1820)  set  sixty-five  years.     Nor  shall 
one  be  appointed  before  he  is  thirty.     Missouri,  ih. 
^  Supra,  page  65. 


286  CONSTITUTIONAL  STUDIES. 

tutions,  however,  declare  professional  qualifications 
indispensable,  such  as  admission  to  the  bar  and  ser- 
vice as  a  practitioner,^ — the  only  real  or  reasonable 
test  which  a  State  may  apply  to  judges. 

As  for  selecting  State  judges,  the  choice  lay  origi- 
nally between  direct  appointment  by  the  Legislature 
and  appointment  (subject  to  Senate  or  Council  confir- 
mation) by  the  Executive.  Towards  the  close  of  the 
last  century.  South  Carolina  and  Tennessee  in  new 
constitutions  preferred  a  choice  by  the  Legislature. 
Vermont's  peculiar  constitution  joined  the  single- 
chambered  Legislature  and  the  Council  for  such  a  pur- 
pose. But  Pennsylvania,  Delaware,  New  Hampshire, 
and  Kentucky  pronounced  in  their  new  instruments  for 
appointment  by  the  Governor  with  such  confirmation 
by  Council  or  Senate  as  harmonized  with  their  several 
systems.  This  course  was  like  that  of  the  Federal 
constitution.  Georgia's  constitutions  of  this  early 
period  were  peculiar;-  and  there  seems  little  doubt 
that  this  uneasy  State,  where  there  was  much  un- 
defined jealousy  against  law  and  the  lawyers,  led 
American  commonwealths  in  point  of  time  as  to  mak- 
ing judges  elective  by  the  people  under  an  organic 
instrument.  Of  the  two  States  admitted  in  the  new 
century  before  our  second  war  with  Great  Britain 
and  Napoleon's  downfall,  Ohio  made  option  of  the 
legislative  election  of  judges,  and  Louisiana  of  execu- 
tive appointment;  and  so  did  States  continue  to 
divide  in  their  declared  preferences  until  1830  or 
later.  But  Mississippi  in  1832  declared  that  all 
judges  should  be  elected  by  the  voters,  while  Missouri 

1  Kentucky,  1 850.  See  constitutions  of  North  and  South  Dakota, 
Utah,  Washington,  etc.  (1889-189.'3). 

2  Cf.  1789  and  1798.  Under  the  latter  instrnmont,  "superior" 
court  {the  highest)  judges  wore  to  he  "elected;"  hut  those  of  tlic  infe- 
rior coui'ts  receiveii  appointment  from  tlie  I/egislatnre.  By  1812  the 
inferior  court  judges  were  subjected  to  the  test  of  popular  election. 


THE  JUDICIARY.  287 

(1822-1835)  worked  gradually  to  the  same  doctrine. 
Indiana,  as  early  as  181(3,  had  determined  upon  a 
general  judicial  tenure  for  seven  years ;  yet  doubtful 
over  the  method  of  selecting  judges,  the  convention 
of  that  new  State  apportioned  the  highest  of  such 
appointments  to  the  Governor,  the  next  in  rank  to 
tlie  Legislature,  and  the  lowest  to  the  people  voting 
in  local  districts.  This  compromise  was  a  sign  of 
the  advancing  sentiment;  and  when  in  1851  Indiana's 
constitution  was  remodelled,  the  choice  of  all  judges 
from  highest  to  lowest  was  freely  accorded  to  the 
people. 

In  short,  the  new  political  idea  of  limiting  judicial 
tenure  to  a  term  of  years  found  readier  and  quicker 
acceptance  in  these  United  States  than  that  of  elect- 
ing judges  at  the  polls.  But  change  in  this  latter 
direction  was  fully  ripe  by  1850 ;  and  old  States  as 
well  as  new  ranged  themselves  quite  generally  in 
favor  of  popular  elections  as  opportunity  henceforward 
permitted.  New  York,  Pennsylvania,  and  Virginia 
led  among  the  old  commonwealths  that  now  embraced 
the  new  faith;  Maine  and  Vermont  acceded  far 
enough  to  permit  probate  and  other  minor  judges  to 
be  thus  locally  elected.  The  last  stand  for  the  old 
method  was  made  at  the  tribunals  of  final  appeal  and 
against  the  choice  of  supreme  judges  by  the  voters 
at  large.  Massachusetts  resisted  wholly  the  new 
departure,  and  IMaine  herself  in  1876  retreated  from 
the  partial  experiment.  But  in  general  the  tide  of 
innovation  has  swept  steadily  on. 

Judges  have  been  made  liable  to  removal,  after  an 
English  rule,  in  many  States.  The  Governor  "shall " 
remove  (or,  as  many  States  prefer  the  text,  "may  "  at 
discretion  remove)  on  the  address  of  two-thirds  of 
each  branch  (or,  as  some  States  prefer,  the  majority) 


288  CONSTITUTIONAL  STUDIES. 

of  the  Legislature.^  Other  States  leave  this  power 
of  removal  to  the  Legislature  apart  from  the  Execu- 
tive.^ Happily,  it  should  be  said,  this  summary 
means  of  purging  the  bench  has  not  often  been  un- 
fairly applied.  In  many  States,  on  the  other  hand, 
as  under  our  Federal  constitution,  such  sweeping 
process  is  wholly  ignored;  while  still  other  States 
permit  a  summary  removal  under  cautious  qualifi- 
cations ;  such  as  confining  the  procedure  to  instances 
of  mental  or  physical  inability  in  the  incumbent,  or 
requiring,  properly  enough,  that  the  cause  of  removal 
shall  Ije  plainly  set  forth  of  record,  and  due  notice 
first  given  to  the  judge  himself,  that  he  may  appear 
and  defend  himself.^  Rhode  Island's  constitution  of 
18-12  had  a  singular  provision  in  this  respect;  it  made 
all  judges  elective  in  the  first  instance  by  the  Legisla- 
ture, and  each  one  should  hold  until  a  majority  of  all 
elected  to  each  house  should  by  joint  resolution  de- 
clare his  place  vacant.  This  liability  of  judges  to  a 
somewhat  arbitrary  removal  has  gained  of  late  years 
such  progressive  approval  in  America  that  we  may 
consider  it  a  remedy  kept  readily  in  reserve  for  the 
corrupt  and  inefficient  who  have  forfeited  just  con- 
fidence rather  than  to  foster  in  judges  a  timid  and  a 
time-serving  dependence  upon  popular  favor.  For 
apart  from  the  right  of  impeachment,  which  prevails 
almost  universally^  in  this  Union,  three-fourths  of  the 
States,  or  more,  now  permit  removal  by  the  Legisla- 
ture, or  by  the  Governor  on  legislative  address,  under 
constraints  more  or  less  particular,  but  in  any  event 
without  any  formal  indictment  and  trial,  or  the  need- 

1  Supra,  page  67.     Kentncky,  Pennsylvania,  Delaware,  Georgia. 
This  New  Hampshire  rule  results  in  various  hasty  removals,  where 

Bome  new  political  party  comes  into  power. 

2  New  York,  1821,  which  is  peculiar  in  the  voting  test  applied. 
*  Delaware,  North  Carolina,  Maine,  etc. 

'  See  next  chapter,  page  290. 


THE  JUDICIARY.  289 

ful   production   of   testimony   under  strict   rules  of 
evidence.^ 

Obnoxious  judges  have  sometimes  })een  legislated 
out  of  office  in  a  body  by  some  act  of  the  Legislature 
abolishing  the  court  itself,  and  creating  a  new  one  in 
its  place.  The  rigid  formula  of  so  many  modem 
constitutions  which  specify  and  create  courts,  instead 
of  trusting  so  largely  to  legislative  erection,  as  did 
the  early  State  instruments  and  that  of  the  Federal 
Union,  diminishes  largely  such  opportunities ;  while 
the  modern  limited  tenure  and  popular  choice  of  the 
judges  tend  to  dispense  largely  with  such  a  need. 
Special  directions  are  found  occasionally  in  State 
constitutions  on  this  subject;  and  Virginia,  in  1830, 
by  way  of  disapproval,  declared  that  no  law  abolish- 
ing a  court  should  be  construed  to  deprive  a  judge  of 
his  office,  unless  two-thirds  of  the  Legislature  con- 
curred, but  such  judges  might  be  assigned  to  other 
duties.  2 

At  the  present  day  we  find  the  Judiciary  in  the 
several  States  of  tliis  Federal  Union  made  more  effi- 
cient, more  fully  independent  of  Legislature  or 
Executive,  than  ever  before,  and  yet,  like  those  two 
other  departments  of  government,  brought  under  the 
direct  control  and  vigilance  of  the  people.  State 
legislatures  have  been  stripped  of  all  judicial  func- 
tions formerly  exercised,  except  in  the  procedure  of 
impeachment;  and  in  the  mode  of  appointing  judges 
the  few  States  which  still  hold  out  against  the  choice 
by  ballot  at  the  polls  prefer  Federal  usage  in  confiding 
the  immediate  selection  to  the  Governor,  with  con- 
firmation by  Council  or  Senate.  In  four  States,  per- 
haps, all  old  ones,  the  Legislature  still  chooses.  But 
less  than  one-third  of  the  States  in  the  entire  Union 

1  Davis,  Tables  (1884),  70.  ^  And  see  Oliio,  1851. 

19 


290  CONSTITUTIONAL  STUDIES. 

trust  any  choice  of  judges  but  that  by  popular  suf- 
frage; and  of  that  small  fraction,  only  five  States  in 
all  —  Delaware,  Florida,  Massachusetts,  New  Hamp- 
shire, and  Rhode  Island  —  still  preserve  that  judicial 
tenure  of  life  or  good  behavior  which  our  Federal 
system  so  highly  commends.^  Whether  an  elective 
judiciary  with  service  for  a  fixed  term  of  years  is  on 
the  whole  an  improvement  in  modern  politics  re- 
mains a  mooted  question;  but  certain  is  it  that  no 
inclination  has  thus  far  been  shown  by  the  preponder- 
ating States,  once  committed  to  this  policy,  to  reverse 
their  opinion. ^  Every  impulse  of  the  age,  indeed, 
tends  in  this  respect  to  the  popular  test.  There  is, 
however,  a  decided  leaning  of  late  towards  longer 
terms  of  judicial  office  than  were  favored  when  the 
reform  began,  —  a  new  proof  of  that  watchful  and 
corrective  habit  in  political  experiments  which  the 
Anglo-Saxon  temperament  so  happily  displays;  for 
while,  about  the  middle  of  the  present  century,  the 
tenure  was  usually  fixed  at  four  or  six  years,  we  now 
find  the  highest  judges  elected  for  an  average  term 
of  eight  years,  which  populous  and  wealthy  New 
York,  where  great  concerns  are  litigated,  increases 
to  fourteen  and  Pennsylvania  to  twenty-one.^  An 
incumbency  like  this  last,  which  is  almost  tantamount 
to  the  ordinary  life  service,  and  begins  with  so  touch- 
ing a  proof  of  public  confidence,  may  well  furnish 
incentive  to  an  honorable  emulation.  One  sees, 
therefore,  that  even  the  dreaded  jenlousy  of  a  democ- 
racy in  the  State  may  be  tempered  by  sober  sense. 
Appeals  for  an  adequate  recompense  to  the  judges  do 

^  Davis,  Tallies,  70.  In  Rhodo  Isluinl  au>l  New  Ilanipsliire  with 
peculiar  limits  elsewhoro  noted. 

-  In  187.3,  upon  the  suhniission  of  a  jivopoKcd  anioiidinoiit  relating 
to  the  judge.4  of  the  highest  court,  the  ijooplc  of  Now  York  by  nearly 
two  to  (jiK^  rcfnseil  to  return  to  the  old  mode  of  appointment. 

^  But  not  re-oligihle.     rennsylvauia,  1873. 


THE  JUDICIARY.  291 

not  go  unheeded ;  and  though  rich  remuneration  comes 
chielly  to  those  who  devote  themselves  to  private 
practice  at  tlie  bar,  the  American  bench  has  never 
yet  failed  to  attract  men  of  honor  and  more  than 
average  ability. 

Among  miscellaneous  constitutional  provisions  re- 
lating to  the  judiciary  in  various  States  these  may  be 
noted.  Tribunals  of  conciliation  to  which  parties 
may  voluntarily  submit  shall  be  favored.  ^  State 
reports  shall  be  speedily  published,  and  shall  be  free 
for  any  one  to  print,  ^  for  emolument,  except  the 
judges  themselves.^  Judges  shall  not  charge  juries 
as  to  facts,  but  may  state  the  testimony  and  declare 
the  law.'^  Judges  shall  as  often  as  possible  refer  in 
their  decisions  to  the  particular  law  on  which  the 
judgment  is  founded.^  Judges  must  render  decision 
in  ninety  days.^  Judges  shall  have  an  adequate 
recompense  by  way  of  salary  and  no  fees  or  perqui- 
sites ;  such  salary  shall  not  be  diminished,  but  may  be 
increased;  they  shall  not  act  as  attorney  or  counsel 
in  matters  to  be  tried  before  them,  nor  in  general  be 
interested  parties  in  the  official  business  transacted 
in  their  courts.'^  They  must  not  even  practise  law 
while  on  the  bench.  ^  And  for  their  better  seclusion, 
as  also  for  encouraging  a  devotion  to  the  duties  for 
which  they  have  been  set  apart,  undistracted  by 
politics,  judges  are  sometimes  declared  ineligible  to 
public   office   elsewhere   excepting    judicial   station, 

1  Wisconsin,  1846  ;  New  York,  1846.     See  also  Georgia,  1789-1835. 

2  California,  1849. 

3  Indiana,  1851. 

4  Ih. 

^  Louisiana,  1812,  with  a  civil  code. 

®  Rather  a  qnestional)le  requirement  so  far  as  fixing  specific  limits 
is  concerned.     California,  1879. 

■^  See  New  Hampshire  as  early  as  1 792.  IJecent  constitutions  (1889) 
of  new  States  contain  sucli  provision. 

8  California,  1879. 


292  CONSTITUTIONAL  STUDIES. 

during  their  respective  terms  of  service.^  Special 
provisions  are  sometimes  found  concerning  the 
method  and  limitation  of  suits  against  the  State. 

There  are  still  a  few  States  of  this  Union  in  which 
the  (jovernor  (and  perhaps,  too,  the  Legislature)  may 
ask  in  advance  the  formal  opinion  of  the  judges  of 
the  highest  court  for  public  guidance  ;2  but  usually 
no  opinion  can  be  procured  from  the  judiciar}^  of  a 
commonwealth  except  through  the  ordinary  channel 
of  litigation  and  the  formality  of  a  test  case  duly 
argued. 

The  common  practice  in  this  country  about  1789 
was  for  a  court  to  appoint  its  own  clerk ;  and  a  clerk 
might  serve,  like  the  judge,  for  good  behavior.  A 
judge  often  bestowed  the  easy  office  upon  a  son  or 
kinsman.  Ohio  in  1802  required  sheriffs  and  justices 
of  the  peace  to  be  locally  elected  by  the  voters ;  and 
this  rule  grew  gradually  into  State  favor.  The 
county  prosecuting  officers  were  formerly  appointed 
to  a  considerable  extent  l)y  the  Executive.  The 
modern  revolution,  however,  in  favor  of  fixed  tenure 
and  popular  elections  for  all  officers  of  a  State,  has 
swept  into  the  patronage  of  the  voters,  clerks,  sheriffs, 
marshals,  district  attorneys,  and  registers,  as  well  as 
the  judicial  incumbents  of  the  courts  with  which 
such  officers  are  connected,  from  lowest  to  highest. 
In  States  disposed  to  economize  the  offices,  the 
comity  clerk  has  sometimes  been  designated  to  serve 
as  clerk  of  a  county  court,  while  the  Secretary  of 
State  officiates  as  clerk  of  the  highest  appellate 
tribunal.^ 

The  increased  momentum  of  the  judicial  power  in 
the  United  States  chiefly  results  (1)  from  the  idea 

1  California,  1879. 

2  ,S'«/)ra,  page  67 ;  rioriila,.  1875;  South  Dakota,  1889. 
8  New  Jersey,  1844. 


CONSTITUTIONAL  INTERPRETATION.    293 

gradually   evolved   in    American    politics    that   the 
written   constitution,   the  local  fundamental  law  of 
any  State,  shall  be  regarded  as  a  sovereign  emanation 
from  the  people,  for  defining  and  portioning  out  the 
respective  functions  of  well-ordered  government,  and 
while  confining  each  co-ordinate  branch  of  such  gov- 
ernment to  its  own  legitimate  sphere,    keeping  all 
three  of  them  from  encroaching  upon  the  reserved 
rights  of  the  individual  citizen ;  (2)  as  the  corollary 
of  such  a  proposition,  from  the  necessity  of  finding 
some  constant  safeguard  and  exponent  of  such  funda- 
mental law,  so  that  Executive  and  Legislature,  the 
originators    more   particularly   of    public    policy   for 
present  and  future,  shall  be  kept  to  the  equilibrium  of 
fundamental  constraints  by  some  force  consistent  with 
normal  tranquillity.     That  safeguard  and  exponent 
has  been  found,  both  in  State  and  Federal  systems, 
in  the  tranquil  and  deliberate  oversight  of  the  Judici- 
ary, —  a  tribunal   devoted  to  revision   of   the   past, 
co-ordinate  as  far  as  possible  with  these  more  active 
and  aggressive  departments,  yet  equally  independent 
in  fundamental  theory,  and  equally  bound  to  regard 
the  will   of  the  people  as  constitutionally  expressed. 
The  courts  accordingly  compare  the  acts  of   these 
other  departments  with  the  written  constitution,  and 
as  to  acts  of  legislation,    most   particularly,    whose 
scope  might  otherwise  be  resistless  by  the  individual, 
pronounces  them  invalid  and  of  no  effect,  if  in  fun- 
damental  conflict.      Foreign  observers  of  our  insti- 
tutions marvel  that  such  a  mechanism  of  constraint 
can  be   practically  applied,  and  they   pronounce   its 
application   confusing;    yet  they   freely    admit   that 
the  mechanism  works,  and  at  this  long  distance  of 
time  works  easily. 

Such  arbitrament  works  all  the  better  because  no 
violent   array   is   brought   up   against  Executive  or 


294  CONSTITUTIONAL  STUDIES. 

Legislature,  because  the  test  case  made  is  that  of 
private  individuals,  and  because  argument  is  heard, 
delay  accorded,  and  the  public  mind,  well  prepared 
to  doubt  whether  the  act  complained  of  were  really 
consistent  with  organic  law,  learns  in  due  time  the 
decision  and  its  reasons.  The  test  case  comes  to 
judgment;  the  particular  judgment  is  enforced;  and 
the  people,  and  they,  too,  of  co-ordinate  departments 
of  the  government  whose  pride  is  not  wounded,  and 
whose  agents  have  perhaps  already  changed,  concede 
that  the  judgment  for  one  individual  contestant  ought 
to  prevail  equally  for  all  other  private  contestants 
similarly  situated.  Cheerful  acquiescence  in  the 
decision  of  the  highest  appellate  tribunal  becomes 
doubly  the  policy  of  fairness,  —  a  maxim  like  that  of 
acquiescence  in  the  political  will  of  a  majority;  and 
even  were  resistance  continued,  the  court's  process  is 
available  to  all  other  individuals  in  turn  who  feel 
aggrieved,  and  disobedience  to  the  law-makers  be- 
comes obedience  to  the  State.  Thus  does  wrong- 
ful and  despotic  legislation  become  Siipped  of  its 
mischief. 

The  idea  of  a  power  thus  overriding  the  enactment 
of  a  legislature  was  not  wholly  new  to  American 
citizens  in  1789,  but  existed  to  some  extent  in 
colonial  and  Revolutionary  times ;  and  in  the  national 
era  which  has  succeeded  that  date,  the  Supreme 
Court  of  the  United  States  simply  exerts  on  a  new 
and  more  comprehensive  scale,  and  with  a  more 
imposing  fundamental  operation,  what  States  inde- 
pendent of  Great  Britain  had  severally  begun  to 
exercise  in  the  intervening  years  through  their  own 
highest  tribunals.^  Perfect  government  is  gained  in 
this  inherent  operation  of  fundamental  law  of  the 
land,  when  general  acquiescence  is  peacefully  given 

1  See  "Atlantic  Moutlily,"  November,  1881. 


CONSTITUTIONAL  INTERPRETATION     295 

both  by  tlie  people  and  the  public  departments,  so 
that  the  Executive  desists  from  enforcement,  and  the 
Legislature  repeals  the  devitahzed  statute  without 
further  controversy.  For  even  supposing  the  court 
to  have  registered  an  unrighteous  decision  (which  is 
seldom),  it  is  better  that  the  people,  who  make  and 
unmake  judges  and  other  public  servants,  shall  defer 
to  the  decision  until  their  own  peaceful  opportunity 
comes  to  reorganize  and  reconstruct. 

The  field  of  the  American  Judiciary  becomes  thus 
immensely  enlarged  as  appellate  judges  in  a  State 
become  thus  the  conservators  of  organic  law.  The 
judges  represent,  as  a  recent  writer  has  well  expressed 
it,  "the  deeper  and  more  abiding  popular  sense  of 
order  and  justice;  "  and  the  court,  no  less  an  instru- 
ment of  the  people  than  the  Legislature,  reflects  the 
public  sentiment  in  a  deeper,  calmer,  more  lasting 
form,  embodying  popular  aspirations  after  an  ideal 
of  perfect  order.  ^ 

1  Horace  Davis's  Americau  Constitutions,  61. 


VIII. 

MISCELLANEOUS  ;  CONCLUSION. 

Impeachment  by  the  Legislature  for  the  removal  of 
public  officers  is  a  process  still  sanctioned  almost 
everywhere  in  our  American  States,  Oregon  long 
constituting  the  sole  exception.  Impeachment  pro- 
visions in  the  Federal  constitution  furnish,  with  some 
local  variations,  the  usual  model  in  this  respect.  But 
the  cumbrousness  and  uncertain  result  of  all  such 
political  trials  have  induced  contempt  for  the  pro- 
cedure ;  so  that  in  consequence  some  States  are  now 
disposed  to  extend  the  summary  removal  of  public 
officers  b}^  address  or  joint  resolution  as  a  legislative 
substitute ;  ^  while  others  empower  the  Governor, 
whenever  charges  aie  preferred  against  subordinates, 
to  suspend  or  remove  the  culprits  from  office,  and 
to  institute  ci'iminal  prosecution  against  them  in  the 
courts.  Elections  at  frequently  recuri-ing  intervals 
and  the  popular  test  for  all  high  officers  of  State, 
judges  included,  nnist  largely  dispense  with  the 
necessit}^  of  impeachment.  Some  modern  State  con- 
stitutions expressly  confine  impeachment  by  the 
Legislature  to  high  officials,  making  all  the  lesser 
public  servants  liable  to  indictment  and  trial  in  the 
courts,  and  even  to  judicial  removal,  in  case  of  con- 
viction, as  part  of  the  punishment.^ 

1  See  Louisiana,  1812;  TiidiaDM,  ISfil  ;  pajje  288. 

2  Tennessee,  1834.     And  see  Califoniia,  1848;  Oregon,  1857. 


MISCELLANEOUS  PROVISIONS.  297 

We  have  observed  in  the  States  of  this  century  a 
growing  insistence  upon  geographical  residence  as  a 
test  of  tlie  right  to  vote  or  hold  office.  Qualification, 
or  rather  clear  definition,  of  this  rule  finds  occasion- 
ally an  organic  recognition ;  thus  absence  from  home 
on  business  of  the  State  or  Union  shall  not  dejjrive 
one  of  such  residential  rights. ^  The  chief  officers  of 
State  are  specially  required  under  various  constitu- 
tions to  reside  at  the  seat  of  government, ^  and  to 
keep  the  records  there,  while  county  officers  are 
similarly  enjoined.  States,  while  seldom  liberal, 
have  sometimes  been  parsimonious  respecting  public 
salaries;  as  when  Tennessee's  constitution  in  1796 
prescribed  a  maximum  limit  for  such  recompense  in 
specific  instances,  yet  named  no  minimum.  "All 
salaries  and  fees  shall  be  moderate,"  enjoins  Delaware 
in  1792,  "and  receipts  which  specify  particulars  shall 
be  given  for  all  official  fees."  ^  The  Legislature  shall 
determine  what  deductions  shall  be  made  from  the 
salaries  of  public  officers  for  neglect  of  duty.  Among 
citizens  specially  enumerated  as  ineligible  to  State 
office  we  find  ministers  of  the  gospel,^  army  and  navy 
contractors,  persons  in  the  service  of  the  United 
States,  and  those,  moreover,  convicted  of  bribery  or 
infamous  crimes.  Plurality  of  offices,  State  and 
national,  is  frequently  forbidden  in  State  instruments. 
Virginia  in  1850  disqualified  every  salaried  officer  of 
a  bank  or  attorney  for  the  commonwealth  from  sitting 
in   the   Legislature.     Delaware   has  been  the  latest 

1  Kentucky,  1799. 

2  Michigan,  1835;  Indiana,  1851,  etc.  Louisiana's  early  constitution 
of  1812  declares  that  all  civil  officers  for  the  State  at  large  shall  reside 
within  the  State ;  and  all  district  or  county  officers  within  tlieir  respec- 
tive districts  or  counties,  and  shall  keep  their  respective  offices  at  such 
places  therein  as  may  be  required  by  law. 

8  Delaware,  1792. 
*  Supra,  page  68. 


298  CONSTITUTIONAL   STUDIES. 

State  in  the  Union,  apparently,  to  retain  a  property 
qualification,  somewhat  as  in  the  last  century.  ^  Re- 
ligicMis  qualification  was  ignored  so  generally  in  new 
State  constitutions  early  in  this  centmy  that  it  seemed 
a  relic  of  old  times  when  Arkansas,  as  late  as  1836, 
declared  upon  admission  to  the  Union  that  no  atheist 
should  hold  office  nor  be  an  admissible  witness  in  the 
courts.  But  North  Carolina  as  late  as  1876  renewed 
the  atlieist  disqualification  of  her  earlier  constitution; 
and  a  few  other  instruments  of  old  States  are  of  the 
same  purport. ^ 

FolloAving  the  traditions  of  her  colonial  age,  Con- 
necticut, far  into  the  nineteenth  century,  maintained 
two  State  capitals,  Hartford  and  New  Haven,  where 
the  Legislature  was  required  to  hold  alternate  ses- 
sions; but  since  1873  Hartford  has  absorbed  the 
honor  of  State  residence.  Rhode  Island,  with  a 
similar  colonial  history,  still  pursues  that  old  custom 
of  double  headquarters  at  Providence  and  Newport. 
In  all  other  States  of  the  Union  one  capital  city  has 
always  sufficed,  and  from  the  very  outset  of  the  nine- 
teenth century  wo  see  the  Federal  rivalry  of  1789 
reproduced,  and  the  strife  of  local  settlements  emulous 
for  selection  as  the  seat  of  government,  shaping  the 
expression  of  conventions,  under  whose  guidance 
Territories  were  ushered  into  the  Union  as  fidl-grown 
States.  Thus  Ohio  in  1802  declares  Chillicothe  the 
seat  of  State  government  until  1808,  and  forbids 
money  to  be  raised  until  1800  for  erecting  any  State 
House.    Louisiana  in  1812  orders  the  State  capital  to 

1  For  the  Senate.  A  coiiveiitiou  has  (1897)  ordained  a  new  con- 
stitution for  Delaware.  A  peculiarly  ohstriictivo  method  of  callinj:; 
a  State  convention  under  the  old  organic  law  (namely,  the  vote  of  an 
average  rcpre.'^entative  majority  of  the  people)  hindered  the  needful 
popular  assent  earlier. 

'^  See  supra,  page  230. 


STATE  CAPITALS,  ETC.  299 

continue  at  New  Orleans  until  removed  by  law.  By 
the  middle  of  this  century  the  location  of  the  seat  of 
government  in  a  new  State  had  become  a  prize  for 
keen  and  speculative  competition;  so  that  the  con- 
vention which  framed  the  organic  instrument  for 
submission  to  Congress  would  often  evade  the  choice 
of  more  than  a  temporary  capital,  leaving  the  perma- 
nent one  to  be  fixed  later  by  the  Legislature,  under 
the  proviso  that  a  State  or  even  a  county  seat  of 
government  once  deliberately  selected  should  not  be 
changed  again  at  discretion.  Oregon  in  1857  made 
the  majority  vote  of  the  people  indispensable  to 
every  proposal  for  capital  removal,  —  a  wise  precau- 
tion, since  schemes  of  the  kind  turn  usually  in  the 
Legislature  upon  local  jobbery  and  debasement.  State 
boundaries  are  defined,  and  the  fundamental  condi- 
tions with  Congress  concerning  admission  are  seen 
set  forth  in  the  constitutions  of  most  new  States  of 
modern  times ;  and  a  schedule  is  conveniently  affixed 
to  new  constitutions  in  general  for  temporary  details 
connected  with  the  new  establishment. 

The  revision  and  codification  of  State  laws,  at  once 
or  at  some  later  specified  period,  is  found  a  feature  of 
many  State  constitutions  in  modern  times ;  and  com- 
missions for  that  purpose,  or  for  devising  improve- 
ments in  the  penal  and  practice  codes,  are  sanctioned 
accordingly.!  Indeed,  commissions  of  three  or  more 
have  multiplied  much  as  the  drudgery  of  State  busi- 
ness increases ;  and  boards  of  commissioners,  gradu- 

1  See  this  idea  emanating  early  in  the  southwestern  region,  as  in 
Alabama,  1819,  and  Missouri,  1820.  By  1846  New  York  set  an  exam- 
ple in  that  respect  since  largely  followed.  But  Michigan,  in  1850,  for- 
bade all  general  revision  of  laws  in  the  future,  pointing  out  a  simpler 
method  of  reprinting,  in  the  government  publication,  by  way  of  substi- 
tute. Whatever  State  legislatures  might  have  ordered  in  such  States 
as  Virginia  and  Massachusetts  without  constitutional  (h'rection,  Georgia's 
constitution  of  1798  is  seen  directing  that  witliin  five  years  the  body  of 
laws  of  that  State,  civil  and  criminal,  should  be  digested. 


300  CONSTITUTIONAL  STUDIES. 

ally  rotating,  came  into  vogue  by  1850,  to  supplant 
single  heads  for  bureau  service  of  a  counuonwealth. 

The  old  thirteen  States,  once  colonies,  received  no 
liberal  gifts  for  education  from  the  Federal  Union  of 
1789,  such  as  endow  common  public  instruction  so 
liberally  in  States  west  of  the  Alleghanies  from  the 
proceeds  of  the  Federal  pubhc  lands.  Some  of  these 
original  States,  however,  have  had  public  educational 
funds  of  their  own  creation;  that,  for  instance,  of 
Connecticut,  known  as  the  common-school  fund,  and 
excellently  managed;  and  New  York  had  a  similar 
endowment.!  Knowledge,  virtue,' literature,  and  the 
common  schools  —  the  latter  free  from  sectarian  con- 
trol—  are  all  repeatedly  commended  in  the  organic 
law  of  these  United  States,  superintendents  of  State 
education  being  specially  provided.  Asylums  for 
the  poor  and  feeble  gain  provision  also ;  and  the  State 
almshouse,  and  State  institutions  for  the  insane, 
blind,  deaf  and  dumb,  are  seen  by  1850  among  the 
public  institutions  recognized  by  the  fundamental 
law  of  the  people.  Humane  sentiments  make  con- 
stant advance,  and  organic  prohibitions  multiply 
against  duels  and  lotteries, ^  as  well  as  the  older 
offences  enumerated.  The  evil  practice  of  duelling, 
which  had  cost  so  many  distinguished  lives,  Avas  by 
1850  not  unfrequently  denounced  as  a  disqualification 
for  office ;  and  Texas  in  1845  required  an  oath  to  be 
taken  by  every  State  officer  and  member  of  the  Legis- 
lature that  he  had  not  fought  nor  been  second  in  a 
duel  since  the  State  constitution  was  adopted. 

Tennessee's  constitution  at  the  time  of  her  admis- 

1  Connectii'ul;,  1818;  New  York,  1821  ;  supra,  page  228. 

-  See  Marylaiitl  (1851)  and  other  States  (1851-1860).  Trevious  to 
1800,  lotteries  had  been  widely  recognized  in  America  as  a  suitable 
mode  of  raising  funds  on  behalf  of  charity,  religion,  and  public 
improvements. 


MUNICIPAL    GOVERNMENT.  301 

sion  to  the  Union  in  1796  contained  a  protective 
clause,  exempting  from  taxation  all  articles  manu- 
factured from  the  produce  of  the  State.  During  the 
era  of  this  century  that  State  internal  improvements 
made  an  absorbing  issue  in  national  politics,  some  of 
our  local  constitutions  exhorted  the  Legislature  to 
encourage  such  projects,  while  others  forbade  or 
restrained  all  expenditures  of  the  kind.^  By  1860 
the  condemnation  of  such  costly  enterprises  at  tlie 
expense  of  the  State  had  become  general.  New- 
York's  constitutions  have  taken  special  concern  in 
protecting  and  developing  tl^^  salt  springs  of  the 
State  and  the  Erie  and  Champlain  canals,  ^  ordaining 
in  1846  that  these  public  sources  of  wealth  should 
never  be  sold.  Indiana  has  enclosed  as  a  sacred 
precinct  the  Tippecanoe  battle-field;  and  Maryland 
her  State  House  square  and  grounds  at  Annapolis, 
while  New  York  seeks  to  rescue  from  private  waste 
or  depredation  the  Adirondack  forests  and  the  water 
supply  of  the  Hudson  and  Mohawk  valleys. 

The  increasing  tendency  of  an  American  popula- 
tion to  swarm  at  central  points  of  the  commonwealth, 
to  the  detriment  of  town  representation  and  the  old 
uniform  local  government  by  selectmen  and  town 
meeting,  drew  general  notice  before  this  century  had 
far  advanced.  New  York  in  1821  ordained  that 
mayors  of  all  cities  in  that  State  should  be  chosen  by 
the  respective  common  councils,  but  in  1833  per- 
mitted the  mayor  of  New  York  City  to  be  elected  at 
the  polls.  Massachusetts  in  1822  by  a  constitutional 
amendment  authorized  the  Legislature  of  the  State  to 
incorporate  cities  wherever  there  were  twelve  thou- 
sand inhabitants,  and  the  local  voters  desired  such 

1  Cf.  Missouri,  Tennessee,  Alabama,  Mississippi,  Michigan,  Florida, 
and  Texas  (1819-1845). 

2  New  York,  1833,  1835. 


302  CONSTITUTIONAL   STUDIES. 

change  of  government.  Since  the  Civil  War,  State 
constitutions,  having  large  cities  within  the  jurisdic- 
tion, are  seen  devoting  much  detail  to  that  increas- 
ingly difficult  subject  of  municipal  self-government. 
Thus,  Maryland  in  18G7  makes  lengthy  provision 
regarding  the  government  of  Baltimore.  One  muni- 
cipal change  which  the  recent  New  York  convention 
of  1894  favored  is  that  of  separating  such  municipal 
elections  from  those  of  State  or  national  officers,  and, 
by  making  them  local  and  distinct,  concentrate  the 
voter's  attention  to  candidates  detached  from  other 
issues.  In  comprehensive  schemes,  however,  for 
municipal  government,  States  are  still  confessedly  in 
the  experimental  stage  of  a  most  gigantic  problem; 
it  may  be  said  that  of  divided  responsibilities,  multi- 
plied checks  and  balances,  and  varying  terms  of  civic 
servants,  the  present  age  seems  heartily  sick;  and 
dispensing  with  councils  or  mimic  representative 
assemblies,  the  remedy  of  the  hour,  which  may  or 
may  not  prove  finally  effective,  is  that  of  establishing 
a  business  man's  government,  controlled  essentially 
like  a  private  business  corporation,  with  powers  con- 
centrated in  a  commission  or  single  executive  whom 
a  board  of  aldermen  can  but  slightly  restrain.  ^ 

The  political  tendency  has  been  in  many  States 
for  the  legislative  majority,  on  behalf  of  rural  con- 
stituencies, to  take  a  great  metropolis  in  hand,  med- 
dling in  its  morals  by  a  State  board  of  police,  and 
regulating  and  experimenting  with  its  municipal  gov- 
ernment; but  some  late  constitutions  react  a  little  in 
favor  of  that  home  rule  and  local  influence  which  all 
good  citizens  must  cherish  while  republics  endure. ^ 

1  The  mayor  of  any  city  may  make  official  objection  or  "  veto " 
within  fifteen  days  to  hills  of  the  Legislature  which  affect  the  city's 
domestic  affairs.     New  York,  1S94. 

2  New  York's  1894  amendments  classify  the  cities  of  that  State 
Recording  to  relative  population ;  and  as  to  cities  of  the  first  class 


A  POPULAR  REFERENCE.  303 

We  have  elsewhere  traced  the  growth  of  that  fun- 
damental doctrine  which  required  the  submission  of 
constitutions  and  of  constitutional  amendments  to 
the  voters.  Towards  the  middle  of  this  century  such 
convenient  reference  to  the  people  became  a  resort 
for  relieving  a  State  convention  of  various  trouble- 
some decisions  upon  such  fundamental  propositions 
as  granting  suffrage  to  the  colored  race  in  a  free 
commonwealth;  and  thence  the  further  advance  was 
easy  for  a  convention  to  authorize  a  legislature  to 
frame  other  specific  issues  of  a  like  perplexing  kind 
for  the  voters.  Thus  the  Wisconsin  convention  in 
1848  permitted  a  popular  reference  by  the  Legislature 
of  "bank  or  no  bank,"  the  creation  or  non-creation  of 
such  corporations  to  depend  upon  the  will  of  the 
popular  majority  as  expressed  at  the  polls.  The 
creation  of  public  debt  for  certain  purposes  was  so 
referred  in  various  instances.  The  liquor  question, 
too,  where  those  who  would  prohibit  in  a  State  alto- 
gether conflict  with  the.  promoters  of  a  license, 
became  about  1850,  as  it  has  been  ever  since,  an 
issue  for  popular  7xfercndum  under  State  constitu- 
tions,^ with  later  a  "local  option"  application  as 
between  the  two  plans  in  the  various  towns  and  cities. 
Taxation  and  other  provisions  are  seen  framed  in  the 
modern  organic  law  of  several  States  never  to  be 
changed  without  a  referendum  to  the  people.  In 
many  States  a  referendum  is  regularly  made  to  the 
people  at  specific  periods,  such  as  twenty  years,  on 
the  question  of  calling  a  constitutional  convention. 
And  States  are  already  agitating  a  new  and  final 
advance  in  the  same  direction  which  shall  require  the 
submission  of  all  enactments  by  the  Legislature   to 

empower  a  mayor  to  p;nard  as  chief  executive  the  interests  of  the 
community  against  injurious  legislation. 
1  Oliio,  1851. 


304  CONSTITUTIONAL  STUDIES. 

the  same  final  sanction  of  the  people  at  the  polls. 
Ancient  experience  shows  the  unfitness  of  a  plebis- 
citum  for  framing  and  originating  measures  in  a  free 
republic  of  more  than  moderate  population,  but  not, 
in  matters  of  general  concern,  for  considering  the 
adoption  of  what  some  representative  body  has  pro- 
posed in  concrete  form. 

The  Anglo-Saxon  temperament  has  held  sway  thus 
far  throughout  the  Union;  and,  whether  in  the  old 
French  and  Spanish  annexations  of  territory  and 
inhabitants,  or  that  incongruous  immigration  from 
abroad  which  j)ours  in  so  constantly  over  the  whole 
area,  foreign  elements  have  been  easily  assimilated. 
To  this  predominance  of  the  primitive  race  and  char- 
acter through  all  such  admixture,  the  stability  of  our 
institutions  is  immensely  owing.  New  States  have 
spread  the  influence  of  English  ideas  in  law  and 
literature,  and  the  mother  tongue  is  the  language  of 
this  continent.  Louisiana,  on  her  admission  in  1812, 
ordained  that  all  laws  of  the  Legislature,  and  all 
judicial  and  legislative  proceedings,  should  be  pro- 
mulgated, preserved,  and  conducted  in  the  same 
language  as  tliat  of  the  constitution  of  the  United 
States.^  California,  more  yielding  to  her  native 
element,  announced  in  1849  that  all  laws  or  decrees 
requiring  publication  should  be  published  in  English 
and  Spanish;  but  the  former  style  has  gained  the 
mastery.  The  genius  of  republican  free  government 
on  this  continent  is  Anglo-American. 

In  conclusion,  we  are  impressed  by  the  progres- 
sive strength  of  the  two  great  forces  of  this  American 

1  It  was  conceded,  however,  in  the  Louisiana  constitution  of  1845, 
that  the  Secretary  of  the  State  Senate  and  Clerk  of  the  State  House 
of  Representatives  should  ho  conversant  witli  both  Enfijlish  and  French, 
and  that  members  might  address  the  Legislature  in  either  language. 


FINAL    OBSERVATIONS.  305 

Union,  the  centripetal  and  the  centrifugal,  in  their 
constant  relation  to  one  another,  as  the  whole  undi- 
vided people  advance  to  continental  empire.  The 
Federal  government,  now  fitly  styled  national,  stirs 
best  the  spirit  of  public  pride  and  love  of  glory, 
because  of  its  splendid  historical  achievements,  and, 
since  the  Civil  War,  its  sure  foundation  in  the 
American  heart.  Exercising  with  energy  such  para- 
mount functions  of  sovereignty  as  those  of  war,  peace, 
foreign  relations,  commerce,  territorial  acquisition 
and  development,  the  post-office,  immense  resources 
of  taxation  which  are  exclusive  as  respects  tariff  and 
the  customs ;  symbolized  in  the  national  flag  and  con- 
trolling the  only  active  and  permanent  army  and 
navy  of  the  people ;  regulating  the  mutual  intercourse 
of  States  and  their  inhabitants  in  essential  particulars, 
—  the  United  States  government  with  its  continuity 
of  administration  is  at  length  easily  paramount.  But 
in  the  several  States,  —  prosaic  by  comparison, 
whether  in  area,  population,  or  the  scope  of  ostenta- 
tious action,  —  we  see  the  multiplying  nurseries  of 
self-government,  the  abodes  where  public  spirit  and 
confident  experience  in  free  institutions  must  still  be 
generated  while  generated  at  all.  Here  originate 
constitutional  reforms  and  the  inventions  of  democracy 
to  curb  and  regulate  all  rulers ;  and  in  these  jurisdic- 
tions will  popular  liberty  maintain  its  last  stand, 
should  the  Union,  ages  hence,  fall  asunder.  Cor- 
ruption that  corrodes,  despotism  that  oppresses,  vice 
that  unnerves,  need  only  be  feared  when  poisoning 
such  fountain-heads. 

Humble  as  may  be  the  field  of  local  achievement  in 
this  Union,  material  as  may  appear  State  ends  and 
inconsequential  State  public  routine,  the  study  of 
republican  institutions  is  an  exceedingly  interesting 
one   which    these    several   commonwealths    furnish. 

20 


306  CONSTITUTIONAL   STUDIES. 

Political  geography  reckons  usually  by  nations  alone 
and  their  chief  cities ;  and  of  State  political  divisions 
in  America  the  outer  world  makes  scarcely  more 
account  than  would  we  of  the  counties  or  provinces 
which  make  up  England,  France,  or  German}^;  all 
the  more  so  that  while  homogeneousness  continues  in 
a  national  sense.  States  with  merely  artificial  bounda- 
ries multiply.  Yet,  while  the  Federal  constitution 
has  yielded  but  little  to  structural  reform  for  more 
than  a  hundred  years,  State  instruments  abound  in 
improved  ideas  of  government  which  deserve  to  be 
nationalized. 

Our  first  impression,  perhaps,  as  we  approach  the 
study  of  these  documents,  is  unfavorable.  So  much 
constitutional  detail  seems  needless.  We  object  that 
something  ought  to  be  left  to  the  discretion  of  the 
governing  power,  that  the  closest  ligature  of  parch- 
ment offers  no  adequate  guaranty  of  good  government. 
But  when  we  have  well  studied  and  compared  State 
constitutions,  such  prejudice  softens ;  we  discern  that 
the  modern  governing  power  in  the  American  com- 
monwealth is  not  the  agent,  but  the  principal,  not 
individual  ambition,  but  the  general  opinion.  We 
realize  that  a  constitution  becomes  the  most  impera- 
tive of  written  law,  because  the  enactment  of  the 
people.  Breadth,  not  intolerance,  characterizes  these 
later  schemes  of  State  government.  Dislike  of 
monopolies,  of  class  and  monej^-making  privileges, 
though  visible,  is  not  destructively  manifested.  If 
some  impertinent  or  niggardly  constraint  can  be 
pointed  out  in  a  State  constitution,  it  is  only  on  rare 
occasion.  If  rulers  seem  now  and  then  hampered  in 
action,  it  is  because  the  ruled  are  "subjects,"  in  the 
old-world  sense,  no  longer;  because  American  citizens 
are  keenly  sensitive  to  public  shortcomings,  and 
apprehend  the  temptations  which  beset  those  placed 


FINAL    OBSERVATIONS.  307 

temporarily  over  them  by  their  own  suffrage.  Sooner 
or  later  the  best  thought  of  each  communit}^  of  busi- 
ness men,  of  journalists,  of  university  scholars,  of 
literary  writers,  of  those  who  make  a  comparative 
study  of  politics  and  government,  of  professional 
men  and  philosophers,  as  well  as  of  recognized  politi- 
cal leaders,  has  gone  into  the  marrow  of  these  State 
constitutions.  Republican  home  government  finds 
here  the  widest  scope  and  expression;  experiments 
bring  results ;  and  expedients  for  reform  soon  develop 
vital  principles.  The  whole  outlook  of  such  progres- 
sion is  hopeful,  since  the  salvation  of  self-govern- 
ment lies  in  a  continuous  sense  of  honor  and  patriotism 
among  the  people,  and  in  the  courageous  determina- 
tion, moreover,  of  the  majority  to  correct  whatever 
practical  mischief  public  administration  may  at  any 
time  bring  to  light.  The  American  people,  as  a 
mass,  are  far  from  being  hasty  and  capricious  in 
ordering  fundamental  changes.  Even  in  the  great 
mass  of  statutes  churned  out  periodically  by  the 
several  State  legislatures,  those  who  explore  inform 
us  that  the  really  important  changes  of  written  law 
are  few  and  unfrequent;  and  our  present  study  of 
institutions  convinces  us  that  in  organic  political 
reforms  as  well,  the  conservative  instinct  of  the 
American  people  is  very  great.  The  inertia  of  the 
mass  opposes  those  who  are  actively  pushing  for  new 
results. 

The  grandeur  of  our  American  example  in  the 
world's  history  seems  well  assured,  if  only  two  dangers 
be  well  guarded  against.  One  of  these,  which  is 
fostered  by  the  exceeding  laxity  of  the  Federal 
power  originall}^  given  in  that  respect  to  Congress, 
or  assumed,  concerns  the  future  territorial  expan- 
sion of  this  Union ;  and  it  might  be  well  if  a  con- 
stitutional amendment  should  guaranty  in  this  respect 


308  CONSTITUTIONAL  STUDIES. 

a  better  constraining  right  to  the  people.  The  new 
and  remote  annexation  of  a  people  unfitted  to  mingle 
in  self-government,  and  of  a  foreign  country  not 
contiguous,  may  imperil  the  experiment  of  the  fathers 
in  some  future  era  of  "manifest  destiny."  The  other 
danger  lies  in  the  excrescent  growth  of  political 
agencies  for  organizing  the  voters,  massing  cohorts 
for  the  candidates,  and  making  selfish  spoils  of  the 
public  patronage.  Against  this  latter  evil  should  be 
set  the  best  mental  and  moral  enlightenment  of  the 
people,  so  that  citizens  may  grow  up  good  patriots, 
able  to  combine  and  co-operate  for  noble  ends  with- 
out arrogance  or  class  spirit.  That  virtue  which 
has  well  been  pronounced  by  Montesquieu  the  ani- 
mating spirit  of  a  republic  is  in  its  essence  patriotism, 
—  a  burning  passion  for  one's  own  country,  and  a 
desire  to  advance  always  its  true  good  and  greatness. 
Though  latent  in  commonplace  times,  such  patriotism, 
when  intelligently  directed,  becomes  an  overwhelm- 
ing force  for  the  general  good  in  times  of  danger. 


CONSTITUTIOlSr 


UNITED    STATES    OF   AMERICA. 


We  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  connnou  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  ourselves  and  our  posterity, 
do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America. 

ARTICLE  I. 

Sect.  1.  All  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist 
of  a  Senate  and  a  House  of  Representatives. 

Sect.  2.  The  House  of  Representatives  shall  be  composed 
of  members  chosen  every  second  year  by  the  i^eople  of  the 
several  States,  and  the  electors  in  each  State  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous  branch 
of  the  State  Legislature. 

No  person  shall  be  a  Representative  who  shall  not  have  at- 
tained to  the  age  of  twenty-five  years,  and  been  seven  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when  elected, 
be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union, 
according  to  their  respective  numbers,  which  shall  be  deter- 
mined by  adding  to  the  whole  number  of  free  persons,  includ- 
ing those  bound  to  service  for  a  term  of  years,  and  excluding 
Indians  not  taxed,  three  fifths  of  all  other  persons.  The  actual 
enumeration  shall  be  made  within  three  years  after  the  first 
meeting  of  the  Congress  of  the  United  States,  and  within  every 
subsequent  term  of  ten  years,  in  such  manner  as  they  shall  by 
law  direct.     The  number  of  Representatives  shall  not  exceed 


310  CONSTITUTION  OF 

one  for  every  thirty  thousand,  but  each  State  shall  have  at  least 
one  representative  ;  and  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  choose  three, 
Massachusetts  eight,  Rhode  Island  and  Providence  Plantations 
one,  Connecticut  live,  New  York  six,  New  Jersey  four,  Pennsyl- 
vania eight,  Delaware  one,  Maryland  six,  Vkginia  ten.  North 
Carolina  five.  South  Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  representation  from  any 
State,  the  Executive  authority  thereof  shall  issue  writs  of  elec- 
tion to  fill  such  vacancies. 

The  House  of  Representatives  shall  choose  their  Speaker  and 
other  officers  ;  and  sliall  have  the  sole  power  of  impeachment. 

Sect.  3.  The  Senate  of  the  United  States  shall  be  com- 
posed of  two  Senators  from  each  State,  chosen  by  the  Legis- 
lature thereof,  for  six  years ;  and  each  Senator  shall  have  one 
vote. 

Immediately  after  they  shall  be  assembled  in  consequence  of 
the  fii'st  election,  they  shall  be  divided  as  equally  as  may  be  into 
three  classes.  The  seats  of  the  Senators  of  the  first  class  shall 
be  vacated  at  the  expiration  of  the  second  year,  of  the  second 
class  at  the  expiration  of  the  fourth  year,  and  of  the  third  class 
at  the  expiration  of  the  sixth  year,  so  tliat  one  third  may  be 
chosen  every  second  year ;  and  if  vacancies  happen  by  resigna- 
tion, or  otherwise,  during  the  recess  of  the  Legislature  of  any 
State,  the  Executive  thereof  may  make  temjiorary  appointments 
until  the  next  meeting  of  the  Legislature,  which  shall  then  fill 
such  vacancies. 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  for  which  he  sliall  be  chosen. 

The  Vice-President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  vote,  unless  they  be  equally 
divided. 

The  Senate  shall  choose  their  other  officers,  and  also  a  Presi- 
dent pro  tempore,  in  the  absence  of  the  Vice-President,  or  when 
he  shall  exercise  the  office  of  President  of  tlie  United  States. 

The  Senate  shall  have  the  sole  power  to  try  all  impeach- 
ments. When  sitting  for  that  ]nirpose,  tliey  shall  be  on  oath  or 
aflinnation.  When  the  President  of  the  United  Stales  is  tried, 
the  Chief  Justice  shall  jircside  :  and  no  jierson  shall  lie  con- 
victed without  the  concurrence  of  two  thirds  of  the  members 
pi'Bsent. 


THE   UNITED   STATES.  311 

Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office,  and  disqualification  to  hold  and 
enjoy  any  office  of  honor,  trust,  or  profit  under  the  United 
States :  but  the  party  convicted  shall  nevertheless  be  liable  and 
subject  to  indictment,  trial,  judgment,  and  punishment,  accord- 
ing to  law. 

Sfx'T,  4.  The  times,  places,  and  manner  of  holding  elec- 
tions for  Senators  and  Representatives  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof  ;  but  the  Congress  may 
at  any  time  by  law  make  or  alter  such  regulations,  except  as  to 
the  places  of  choosing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  year,  and 
such  meeting  shall  bo  on  the  first  Monday  in  December,  unless 
they  shall  by  law  appoint  a  different  day. 

Sect.  5.  Each  House  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members,  and  a  majority 
of  each  shall  constitute  a  quorum  to  do  business ;  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members,  in  such  manner, 
and  under  such  penalties,  as  each  House  may  provide. 

Each  House  may  determine  the  rules  of  its  proceedings,  pun- 
ish its  members  for  disorderly  behavior,  and,  with  the  concur- 
rence of  two  thirds,  expel  a  member. 

Each  House  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may  in 
their  judgment  require  secrecy  ;  and  the  yeas  and  nays  of  the 
niemVters  of  either  House  on  any  question  shall,  at  the  desire 
of  one  fifth  of  those  present,  be  entered  on  the  journal. 

Neither  House,  during  the  session  of  Congress,  shall,  willi- 
out  the  consent  of  tlie  other,  adjourn  for  more  than  tliree  days, 
nor  to  any  other  place  than  that  in  which  the  two  Houses  shall 
be  sitting. 

Sect.  6.  The  Senators  and  Representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law,  and 
paid  out  of  the  Treasury  of  the  United  States.  They  shall  in 
all  cases,  except  treason,  felony,  and  breacli  of  the  peace,  ])e 
privileged  from  arrest  during  their  attendance  at  the  session  of 
their  respective  Houses,  and  in  going  to  and  returning  from 
the  same  ;  and  for  any  speech  or  debate  in  either  House  they 
shall  not  be  questioned  in  any  other  place. 

No  Senator  or  Representative  shall,  during  the  time  for 
which  he  was  elected,  be  appointed  to  any  civil  office  under  the 
authority  of  the  United  States,  which  shall  have  been  created. 


312  CONSTITUTION   OF 

or  the  emoluments  whereof  shall  have  been  increased,  during 
such  time  ;  and  no  person  holding  any  office  under  the  United 
States  shall  be  a  member  of  either  House  during  his  continu- 
ance in  office. 

Sect.  7.  All  bills  for  raising  revenue  sliall  originate  in  the 
House  of  Representatives ;  but  the  Senate  may  propose  or  con- 
cur with  amendments  as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate  shall,  before  it  become  a  law,  be  presented 
to  the  President  of  the  United  States ;  if  he  approve  he  shall 
sign  it,  but  if  not  he  shall  return  it  with  his  objections  to  that 
House  in  which  it  shall  have  originated,  who  shall  enter  the 
objections  at  large  on  their  journal,  and  proceed  to  reconsider 
it.  If  after  such  reconsideration  two  thirds  of  that  House  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the  objec- 
tions, to  the  other  House,  by  whicli  it  shall  likewise  be  recon- 
sidered, and,  if  approved  by  two  thirds  of  that  House,  it  shall 
become  a  law\  But  in  all  such  cases  the  votes  of  both  Houses 
shall  be  determined  by  j'eas  and  nays,  and  the  names  of  the 
persons  voting  for  and  against  the  bill  shall  be  entered  on  the 
journal  of  each  House  respectively.  If  any  bill  shall  not  be 
returned  by  the  President  within  ten  days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  same  shall  be  a 
law,  in  like  manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  adjournment  prevent  its  return,  in  which  case  it  shall 
not  be  a  law. 

Every  order,  resolution,  or  vote  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  adjournment)  shall  be  presented  to  the 
President  of  the  United  States  ;  and,  before  the  same  shall  take 
effect,  shall  be  approved  by  him,  or,  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  rules  and  limitations  pre- 
scril)ed  in  the  case  of  a  bill. 

Sect.  8.     The  Congress  shall  have  power, — 

To  lay  and  collect  taxes,  duties,  imposts,  and  excises  to  pay 
the  debts  and  provide  for  the  common  defence  and  general 
welfare  of  the  United  States  ;  but  all  duties,  iniposts,  and  ex- 
cises shall  be  uniform  throughout  the  United  States; 

To  borrow  money  on  the  credit  of  the  United  States  ; 

To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes; 

To  establish  an  uniform  rule  of  naturalization,  and  uniform 


THE    UNITED   STATES.  313 

laws  on  the  subject  of  bankruptcies  throughout  the  United 
States ; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures ; 

To  provide  for  the  punishment  of  counterfeiting  the  securi- 
ties and  current  coin  of  the  United  States ; 

To  establish  post-offices  and  post-roads  ; 

To  promote  the  progress  of  science  and  useful  arts,  by  secur- 
ing for  limited  times  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  discoveries ; 

To  constitute  tribunals  inferior  to  the  Supreme  Court ; 

To  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations ; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water  ; 

To  raise  and  support  armies,  but  no  aj^i^ropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years ; 

To  provide  and  maintain  a  navy ; 

To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces ; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections,  and  repel  invasions ; 

To  provide  for  organizing,  arming,  and  disciplining  the  mili- 
tia, and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  States  re- 
spectively, tlie  appointment  of  the  officers,  and  the  authority  of 
training  the  militia  according  to  the  discipline  prescribed  by 
Congress ; 

To  exercise  exclusive  legislation,  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by  ces- 
sion of  particular  States,  and  the  acceptance  of  Congress,  be- 
come the  seat  of  the  government  of  the  United  States  ;  and  to 
exercise  like  authority  over  all  places  purchased  by  the  consent 
of  the  Legislature  of  the  State  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and  other 
needful  buildings ;  and 

To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof. 

Sect.  9.  The  migration  or  importation  of  such  persons  as 
any  of  the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the  year  one 


314  CONSTITUTION  OF 

thousand  eight  hundred  and  eight,  but  a  tax  or  duty  may  be 
imposed  on  such  importation,  not  exceeding  ten  dollars  for 
each  person. 

I'he  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  it. 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  pro- 
portion to  the  census  or  enumeration  herein  before  dii'ected  to 
be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State. 

No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  State  over  those  of  another;  nor 
shall  vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  conse- 
quence of  appropriations  made  bylaw;  and  a  regular  statement 
and  account  of  the  receipts  and  expenditures  of  all  public 
money  shall  be  published  from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States; 
and  no  person  holding  any  office  of  profit  or  trust  under  them 
shall,  without  the  consent  of  the  Congress,  accept  of  any  pres- 
ent, emolument,  office,  or  title,  of  any  kind  whatever,  from  any 
king,  prince,  or  foreign  state. 

Sect.  10.  No  State  shall  enter  into  any  treaty,  alliance,  or 
confederation ;  grant  letters  of  marque  and  reprisal ;  coin 
money  ;  emit  bills  of  cretlit ;  make  anything  but  gold  and  silver 
coin  a  tender  in  payment  of  debts ;  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  contracts, 
or  grant  any  title  of  nobility. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be 
absolutely  necessary  for  executing  its  inspection  laws ;  and  the 
net  produce  of  all  duties  and  imposts,  laid  by  any  State  on  im- 
ports or  exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States ;  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  Congress. 

No  State  shall,  without  the  consent  of  Congress,  lay  any  duty 
of  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter 
into  any  agreement  or  compact  with  another  State,  or  with  a 
foreign  power,  or  engage  in  war,  unless  actually  invaded,  or  in 
such  imminent  danger  as  will  not  admit  of  delay. 


THE   UNITED   STATES.  315 


ARTICLE  II. 

Sect.  1.  The  executive  power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his  office  dur- 
ing the  term  of  four  years,  and,  together  with  the  Vice-Presi- 
dent, chosen  for  the  same  term,  be  elected  as  follows  :  — 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature 
thereof  may  direct,  a  number  of  Electors  equal  to  the  whole 
number  of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress :  but  no  Senator  or  Represen- 
tative, or  person  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  an  Elector. 

[The  Electors  shall  meet  in  their  respective  States,  and  vote 
by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves.  And  they  shall 
make  a  list  of  all  the  persons  voted  for,  and  of  the  number  of 
votes  for  each  ;  which  list  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The  President 
of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes  shaU 
then  be  counted.  The  person  having  the  greatest  number  of 
votes  shall  be  the  President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed  ;  and  if  there  be  more 
than  one  who  have  such  majority,  and  have  an  equal  number 
of  votes,  then  the  House  of  Representatives  shall  immediately 
choose  by  ballot  one  of  them  for  President ;  and  if  no  person 
have  a  majority,  then  from  the  five  highest  on  the  list  the  said 
House  shall  in  like  manner  choose  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  States,  the 
representation  from  each  State  having  one  vote ;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members  from  two 
thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  In  every  case,  after  the  choice  of  the 
President,  the  person  having  the  greatest  number  of  votes  of 
the  Electors  shall  be  the  Vice-President.  But  if  there  should 
remain  two  or  more  who  have  equal  votes,  the  Senate  shall 
choose  from  them  by  ballot  the  Vice-President.  —  Repealed  by 
Amendment  XII.'] 

The  Congress  may  determine  the  time  of  choosing  the  Elec- 
tors, and  the  day  on  which  they  shall  give  their  votes;  which 
day  shall  be  the  same  througliout  the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizeir  of  the 


316  CONSTITUTION  OF 

United  States  at  tlie  time  of  the  adoption  of  this  Constitution, 
shall  be  eligible  to  the  office  of  President ;  neither  shall  any 
person  be  eligible  to  that  office  who  shall  not  have  attained  to 
the  age  of  thirty-five  yi'ars,  and  been  fourteen  years  a  resident 
within  the  United  States. 

In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  the  same  shall  devolve  on  the  Vice- 
President,  and  the  Congress  may  by  law  provide  for  the  case  of 
removal,  death,  resignation,  or  inability,  both  of  the  President 
and  Vice-President,  declaring  what  officer  shall  then  act  as 
President,  and  such  officer  shall  act  accordingly,  until  the  dis- 
ability be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  times,  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected,  and  he 
shall  not  receive  within  that  period  any  other  emolument  from 
the  United  States,  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take 
the  following  oath  or  affirmation :  —  "  I  do  solemnly  swear  (or 
affirm)  that  1  will  faithfully  execute  the  office  of  President  of 
the  United  States,  and  will,  to  the  best  of  my  ability,  preserve, 
protect,  and  defend  the  Constitution  of  the  United  States." 

Sect.  2.  The  Pi-esident  shall  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  States, when  called  into  the  actual  service  of  the  United 
States  ;  he  may  require  the  opinion,  in  writing,  of  the  principal 
officer  in  each  of  the  executive  departments,  upon  any  subject 
relating  to  the  duties  of  tlieir  respective  offices,  and  he  shall 
have  power  to  grant  reprieves  and  pardons  for  offences  against 
the  United  States,  except  in  cases  of  impeacliment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of 
the  Senate,  to  make  treaties,  provided  two  thirds  of  the  Sena- 
tors present  concur ;  and  he  shall  nominate,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  shall  appoint  ambassa- 
dors, other  public  ministers,  and  consuls,  judges  of  the  Supreme 
Court,  and  all  other  officers  of  the  United  States,  whoso  appoint- 
ments are  not  herein  otherwise  provided  for,  and  which  shall 
1)6  established  by  law ;  but  the  Congress  may  by  law  vest  the 
appointment  of  such  inferior  officers,  as  they  think  proper,  in 
the  President  alone,  in  the  courts  of  law,  or  in  tlie  heads  of 
departments. 

The  President  shall  have  jiower  to  fill  up  all  vacancies  that 


THE    UNITED   STATES.  317 

may  happen  during  the  recess  of  the  Senate,  by  granting  com- 
missions wliich  shall  expire  at  the  end  of  their  next  session. 

Sect.  3.  He  shall  from  time  to  time  give  to  the  Congress 
information  of  the  state  of  the  Union,  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and 
expedient ;  he  may,  on  extraordinary  occasions,  convene  both 
Houses,  or  either  of  them,  and  in  case  of  disagi'eement  between 
them,  with  respect  to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper  j  he  shall  receive 
ambassadors  and  other  public  ministers ;  he  shall  take  care  that 
the  laws  be  faithfully  executed,  and  shall  commission  all  the 
officers  of  the  United  States. 

Sect.  4.  The  President,  Vice-President,  and  all  civil  officers 
of  the  United  States,  shall  be  removed  from  office  on  impeach- 
ment for,  and  conviction  of,  treason,  bribery,  or  other  high 
crimes  and  misdemeanors. 


ARTICLE  III. 

Sect.  1.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish.  The 
judges,  both  of  the  Supreme  and  inferior  courts,  shall  hold  their 
offices  during  good  behavior,  and  shall,  at  stated  times,  receive 
for  their  services  a  compensation,  which  shall  not  be  diminished 
during  their  continuance  in  office. 

Sect.  2.  The  judicial  power  shall  extend  to  all  cases,  in  law 
and  equity,  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made,  under 
their  authority ;  to  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls  ;  to  all  cases  of  admiralty  and  maritime 
jurisdiction  ;  to  controversies  to  which  the  United  States  shall 
be  a  party;  to  controversies  between  two  or  more  States,  be- 
tween a  State  and  citizens  of  another  State,  between  citizens  of 
different  States,  between  citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States,  and  between  a  State,  or 
the  citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  State  shall  be  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  In  all  the  other  cases 
before  mentioned,  the  Supreme  Court  shall  have  appellate  juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions,  and  under 
such  regulations,  as  the  Congress  shall  make. 


318  CONSTITUTION  OF 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall 
be  by  jury ;  and  such  trial  shall  be  held  in  the  State  where  the 
said  crimes  shall  have  been  committed;  but  when  not  committed 
wdthin  any  State,  the  trial  shall  be  at  such  place  or  places  as  the 
Congress  may  by  law  have  directed. 

Sect.  3.  Treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to  their  ene- 
mies, giving  them  aid  and  comfort.  No  person  shall  be  con- 
victed of  treason  unless  on  the  testimony  of  two  witnesses  to  the 
same  overt  act,  or  on  confession  in  open  court. 

The  Congress  shall  have  power  to  declare  tlie  punishment  of 
treason,  but  no  attainder  of  treason  shall  work  corruption  of 
blood,  or  forfeiture,  except  during  the  life  of  the  person  at- 
tainted. 

ARTICLE  IV. 

Sect.  1.  Full  faith  and  credit  shall  be  given  in  each  State 
to  the  public  acts,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  may  by  general  laws  prescribe 
the  manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof. 

Sect.  2.  The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  tlie  several  States. 

A  person  charged  in  any  State  with  treason,  felony,  or  other 
crime,  who  shall  flee  fi'om  justice,  and  be  found  in  another 
State,  shall,  on  demand  of  tlie  executive  autliority  of  the  State 
from  which  he  lied,  be  delivered  up,  to  be  removed  to  the  State 
having  jurisdiction  of  the  crime. 

No  person  held  to  service  or  labor  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law 
or  regulation  therein,  be  discharged  from  such  service  or  labor, 
but  shall  be  delivered  up  on  claim  of  the  party  to  whom  such 
service  or  labor  may  be  due. 

Sect.  3.  New  States  may  be  admitted  by  the  Congress  into 
this  Union;  but  no  new  State  shall  be  formed  or  erected  within 
the  jurisdiction  of  any  other  State  ;  nor  any  State  be  formed 
l)y  the  junction  of  two  or  more  States,  or  parts  of  States,  with- 
out the  consent  of  the  Legislatures  of  the  States  concerned,  as 
well  as  of  the  Congress. 

The  Congress  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States ;  and  nothing  in  this 


THE   UNITED   STATES.  319 

Constitution  shall  be  so  construed  as  to  prejudice  any  claims  of 
the  United  States,  or  of  any  particular  State. 

Sect.  4.  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  republican  form  of  government,  and  shall  pro- 
tect each  of  them  against  invasion;  and  on  application  of  the 
Legislature,  or  of  the  Executive  (when  the  Legislature  cannot 
be  convened),  against  domestic  violence. 


ARTICLE  V. 

The  Congress,  whenever  two  thirds  of  both  houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  Constitution,  or, 
on  the  application  of  the  Legislatures  of  two  thirds  of  the  several 
States,  shall  call  a  convention  for  proposing  amendments,  which, 
in  either  case,  shall  be  valid  to  all  intents  and  purposes,  as  part 
of  this  Constitution,  when  ratified  by  the  Legislatures  of  three 
fourths  of  the  several  States,  or  by  conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may  be  pro- 
posed by  the  Congress;  provided  that  no  amendment  which 
may  be  made  prior  to  the  year  one  thousand  eight  hundred  and 
eight  shall  in  any  manner  affect  the  first  and  fourth  clauses  in 
the  ninth  section  of  the  first  article ;  and  that  no  State,  without 
its  consent,  shall  be  deprived  of  its  equal  suffrage  in  the 
Senate. 

ARTICLE  VI. 

All  debts  contracted  and  engagements  entered  into,  before  the 
a<loption  of  this  Constitution  shall  be  as  valid  against  the  United 
States  under  this  Constitution  as  under  the  Confederation. 

This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made,  under  tlie  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land ;  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and  the 
members  of  the  several  State  Legislatures,  and  all  executive  and 
judicial  officers,  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  oath  or  affirmation  to  support  this 
Constitution;  but  no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  United 
States, 


320  CONSTITUTION,  ETC. 

ARTICLE  VII. 

The  ratification  of  the  conventions  of  nine  States  shall  he 
sufficient  for  the  establishment  of  this  Constitution  between  the 
States  so  ratifying  the  same. 

Done  in  Convention,  by  the  unanimous  consent  of  the  States 
present,  the  seventeenth  day  of  September,  in  the  year  of  our 
Lord  one  thousand  seven  hundred  and  eighty-seven,  and  of 
the  Independence  of  the  United  States  of  America  the  twelfth. 
31n  l©itnc!8^  whereof  we  have  hereunto  subscribed  our  names. 

[Signed  by]  G^ :  Washington, 

Presidt.  and  Deputy  from  Virginia, 
and  by  thirty-nine  delegates. 


ARTICLES 

IN  ADDITION  TO,  AND  AMENDMENT  OF,  THE 

CONSTITUTION  OF  THE  UNITED  STATES  OF  AMERICA. 


ARTICLE  I. 


Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  tlie  free  exercise  thereof ;  or  abridging 
the  freedom  of  speech,  or  of  the  press,  or  the  right  of  the  people 
lieaceably  to  assemble,  and  to  petition  the  government  for  a 
redress  of  gi'ievances. 

ARTICLE  II. 

A  well-regulated  militia  being  necessary  to  the  security  of  a 
free  state,  the  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed. 

ARTICLE  IIL 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 


ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue  but  upon 
probable  cause,  supported  by  oath  or  affirmation,  and  particu- 
larly describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

21 


322  CONSTITUTION  OF 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentnieut  or  indictment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger  ;  nor  shall  any  person  be  subject  for  the  same  oifence  to 
be  twice  put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of 
law  ;  nor  shall  private  property  be  taken  for  public  use  without 
just  compensation. 

ARTICLE  YI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law, 
and  to  be  informed  of  the  nature  and  cause  of  the  accusation ; 
to  be  confronted  with  the  witnesses  against  him  ;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and  to 
have  the  assistance  of  counsel  for  his  defence, 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served, and  no  fact  tried  by  a  jury  shall  be  otherwise  re-exam- 
ined in  any  court  of  the  United  States,  than  according  to  the 
rules  of  the  connnon  law. 

ARTICLE  YIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted. 

AKTICIvE  IX. 
The  enumeration  in  tln^  Constitiilion,  of  certain  rights,  shall 
not  be  construed  to  deny  or  ilisparage  others  retained  by  the 
people. 

ARTICLE  X. 
Tlie  powers  not  delegated  to  the  United  States  by  the  Consti- 
tution, nor  prohibited  by  it  to  tlu;  States,  are  reserved  to  the 
States  respectively,  or  to  the  people. 


THE   UNITED  STATES.  323 


ARTICLE  XL 

The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  comiueneed  or 
prosecuted  against  one  of  the  United  States  by  citizens  of 
another  State,  or  by  citizens  or  subjects  of  any  foreign  state. 

ARTICLE  XIL 

The  Electors  shall  meet  in  their  respective  States,  and  vote 
by  ballot  for  President  and  Vice-President,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  State  with  them- 
selves ;  they  shall  name  in  tlicir  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person  voted  for  as  Vice- 
President;  and  they  shall  make  distinct  lists  of  all  persons 
voted  for  as  President,  and  of  all  persons  voted  for  as  Vice- 
President,  and  of  the  number  of  votes  for  each,  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the 
government  of  the  United  States,  directed  to  the  President  of 
the  Senate  ;  —  the  President  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives,  open  all  the  certifi- 
cates, and  the  votes  shall  then  be  counted;  —  the  person  having 
the  greatest  number  of  votes  for  President  shall  be  the  Presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of 
Electors  appointed  ;  and  if  no  person  have  siich  majority,  then 
from  the  persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the  House  of 
Representatives  shall  choose  immediately,  by  ballot,  the  Presi- 
dent. But  in  choosing  the  President,  the  votes  shall  be  taken 
by  States,  the  representation  from  each  State  having  one  vote ; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two  thirds  of  the  States,  and  a  majority  of  all  the 
States  shall  be  necessary  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President,  whenever  the 
right  of  choice  shall  devolve  upon  them,  before  the  fourth  day 
of  March  next  following,  then  the  Vice-President  shall  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  President.  The  person  having  the  greatest 
number  of  votes  as  Vice-President  shall  be  the  Vice-President, 
if  such  number  be  a  majority  of  the  whole  number  of  Electors 
appointed,  and  if  no  person  have  a  majority,  then  from  the 
two  highest  numbers  on  tlic  list  the  Senate  shall  choose  the 
Vice-President;  a  quorum  for  the  purpose  shall  consist  of  two 


324  CONSTITUTION  OF 

thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice.  But  no  person 
constitutionally  ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice-President  of  the  United  States. 

ARTICLE  XIIT. 

Sect.  1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction. 

Sect.  2.  Congi-ess  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

ARTICLE  XIV. 

Sect.  L  All  persons  born  or  naturalized  iu  the  United 
States,  and  subject  to  the  jurisdiction  tliereof,  are  citizens  of 
the  United  States  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. 

Sect.  2.  Representatives  shall  be  ap])ortioned  among  the 
several  States  according  to  their  respective  numliers,  counting 
the  whole  number  of  persons  in  each  State,  excluding  Indians 
not  taxed.  But  when  the  right  to  vote  at  any  election  for  the 
choice  of  Electors  for  President  and  Vice-Pi-esident  of  the 
United  States,  Representatives  in  Congress,  the  execuli\-e  and 
judicial  ofticers  of  a  State,  or  the  members  of  the  Legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  sucii  State, 
being  twenty-one  years  of  age  and  citizens  of  the  United  States, 
or  in  any  way  abridged,  except  for  participation  in  rebellion  or 
other  crime,  the  basis  of  representation  therein  shall  be  reduced 
in  the  proportion  which  the  number  of  such  male  citizens  shall 
bear  to  the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State. 

Sect.  3.  No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  Elector  of  President  and  Vice-President,  or  hold 
any  ollice,  civil  or  military,  under  tlio  United  States,  or  under 
any  State,  who,  liaving  previously  taken  an  oath,  as  a  member 
of  Congi-ess,  or  as  an  ollicer  of  the  United  States,  or  as  a  mem- 
ber of  any  State  Legislature,  or  as  an  executive  or  judicial  olh- 


THE    UNITED   STATES.  325 

cer  of  any  State,  to  support  tlie  ConstiLutioii  of  the  United 
States,  shall  liave  engaged  in  insiin-eciioii  or  rebellion  against 
the  same,  or  given  aid  or  comfort  to  the  enemies  thereof.  But 
Congi'ess  niay,  by  a  vote  of  two  thu'ds  of  each  House,  remove 
such  disability. 

Sect.  4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of 
pensions  and  bounties  for  services  in  suppressing  insurrection 
or  rebellion,  shall  not  be  questioned.  But  neither  the  United 
States,  nor  any  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  nor  any  claim  for  the  loss  or  emancipation  of  any  slave ; 
but  all  such  debts,  obligations,  and  claims  shall  be  held  illegal 
and  void. 

Sect.  .5.  The  Congress  shall  have  power  to  enforce,  by  ap- 
propriate legislation,  the  provisions  of  this  article. 

ARTICLE   XV. 

Sect.  1.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States,  or  by 
any  State,  on  account  of  race,  color,  or  previous  condition  of 
servitude. 

Sect.  2.  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 


INDEX. 


Admission  of  States,  179. 

Aliens,  227.     See  Citizenship. 

Allegiance,  22. 

Ambassadors,  164,  173. 

Amendment,  49,  185,  214-216. 
See  Constitutions. 

Arms,  Eight  to  bear,  191,  220. 

Army,  33,  141,  143,  1.54,  I'JO,  193. 

Attainder,  38,  39,  149, 176. 

Bail,  33,  195. 

Ballot.    See  Elections. 

Banishment,  67,  222. 

Banks,  131,  260. 

Bills  oB'Credit,  i.30. 

Borrow,  120. 

Bribery,  50. 

Cabinet,  157.     See  Council. 

Capital,  147,  298. 

Censors,  47. 

Census,  53,  150. 

Charters,  2,  9.  See  Govern- 
ment. 

Chastisement,  222. 

Chinese,  226,  246. 

Citizenship,  in  general,  24,  293  ; 
naturalization,  1 27  ;  State  and 
Federal,  128 ;  comity  between 
States,  178;  extradition  of 
offenders,  179;  since  civil  war, 
197.     See  Elections. 

Colonies.    See  Government. 

Comity  of  States,  178. 

Commerce,  26,  121-127. 

Commissioners,  74,  87,  282,  299. 

Commons,  Eight  of,  222. 


Compensation,  official,  58,  107, 
163,  170,  223,  296;  for  property 
taken,  41,  195,  222. 

Confederation,  Articles  of, 
how  formed,  84 ;  general  scope, 
86  ;  State  rights  and  Congress, 
86 ;  detailed  provisions,  88  ;  in- 
terstate advantages,  91  ;  how 
ratified,  91;  fatal  defects,  93; 
superseded  1787-89,  94;  ideas 
adapted  (1787),  102;  preamble 
(1787)  compared,  102;  powers 
and  prohibitions,  117;  borrow- 
ing power,  debts,  120 ;  regulation 
of  commerce,  121  ;  naturaliza- 
tion, 127  ;  money  and  measures, 
1.30;  post  office,  132;  criminal 
jurisdiction,  135  ;  war  and  peace 
power,  136  ;  raising  armies,  140; 
calling  oat  militia,  144  ;  sundry 
prohibitions,  150-155  ;  judicial 
power,  169  ;  comity  of  States, 
178  ;  territorial  provisions,  179  ; 
debts  binding,  188;  reservation 
of  rights,  196. 

Confederation,  New  England, 
72. 

Congress  at  Albany  in  1754, 
75;  stamp  act  in  1765,  80; 
continental  (1774-1789),  80, 
86 ;  of  United  States,  104 ; 
Senate  and  Flouse,  104,  107; 
qualifications  and  mode  of 
choice,  105,  200 ;  recompense, 
etc.,    107 ;  choice   of    Senators, 


328 


INDEX. 


etc.,  108,  109;  assembling, 
oflScers,  rules,  110;  jourual, 
bills  for  reveuue,  quorum.  111; 
censure  and  expulsion,  veto, 
etc..  Ill;  impeachment,  112; 
fundamental  powers  and  prohi- 
bitions, 115,  148,  see  Towers 
AND  Prohibitions  ;  choice,  etc., 
of  President,  161,  162;  sena- 
torial special  functions,  164,  165; 
proposing  constitutional  amend- 
ments, 186. 
Constitutions,  in  general,  2,  266, 
293;  how  interpreted,  101. 

I.  States  (1776-1789);  separation 
of  powers  :  Montesquieu,  45  ; 
names  of  States,  46 ;  conven- 
tion to  form,  46  ;  how  amended, 
49  ;  elective  franchise,  50  ;  legis- 
lature, see  Legislature,  51  ; 
executive,  see  Executive,  58  ; 
judiciary,  see  Judiciary,  64 ; 
impeachment,  oaths,  sundry  pro- 
visions, 68 ;  disqualifications,  68 ; 
education  encouraged,  69. 

II.  Federal,  its  origin  and  neces- 
sity, 93 ;  character  of  Federal 
government,  96  ;  structure  and 
distribution  of  powers,  99  ;  com- 
posite, federo-national,  96,  100; 
rules  of  interpretation,  102;  pre- 
amble and  purpose,  102 ;  the 
Federal  legislature,  104,  see 
Congress  ;  fundamental  ])ow- 
ers,  etc.,  115,  148,  see  Powers 
AND  Proiiihitions  ;  the  execu- 
tive President,  etc.,  156,  see 
Executive  ;  the  judiciary,  160, 
see  Judiciary  ;  interstate  rela- 
tions, comity,  178;  faitli  and 
credit  to  records,  178  ;  privileges 
and  immnnitios,  1 78 ;  extradition 
rights,  179;  annexing  now  ter- 
ritory, 179  ;  domestic  territorial 
policy,  180  ;  guaranty  to  States, 
182;  repnl)lican  government, 
182 ;  protection  against  invasion, 


182;  protection  against  insur- 
rection, 183;  adoption  and 
power  to  amend,  185  ;  debts  and 
engagements  binding,  188; 
supreme  law  of  laud,  188  ;  oath, 
no  religious  test,  189;  fifteen 
amendments  since  1787,  190; 
"  bill  of  rights  "  (first  ten),  191  ; 
freedom  of  religion,  of  speech 
and  press,  and  of  petition, 
192  ;  militia,  right  to  bear  arms, 
192 ;  soldiers  not  to  be  quar- 
tered, 193 ;  criminal  safeguards, 
witness,  jury,  193  ;  reservation 
to  State  or  people,  196;  civil  war 
amendments,  197. 

III.  States  since  1789;  historical 
sequence,  203 ;  modern  details 
and  popular  control,  210; 
methods  of  adoption  and  change, 
211-219;  fundamental  maxims, 
220-230 ;  elective  franchise, 
231,  see  Elections;  the 
legislature,  249,  see  Legisla- 
ture ;  the  executive,  267, 
see  Executive  ;  The  judi- 
ciary, 283,  see  Judiciary  ; 
miscellaneous  provisions,  296 ; 
impeachment,  suspension,  296 ; 
capital  cities,  298  ;  codification, 
commissions,  299  ;  special  reser- 
vations, 301  ;  mu)}icipal  govern- 
ment, 301  ;  modern  refcrimdum, 
303 ;  Anglo-Saxon  influence, 
conclusion,  304. 

Contracts,  Impairment  of,  152, 
221. 

Convention,  in  general,  47,  185, 
213  ;  at  Albany  in  1754,  75;  at 
Philadelphia  in  1787,  46,  94. 

Copyright,  133. 

Council,  59,  61,  157,  272,  280. 

Court,  General,  17,  54. 

Courts.      See  Judiciary. 

Crime,  13,  32,  132,  135,  17.5,  193, 
223  ;  punishment  of,  36,  42, 177, 
195,  222. 


INDEX. 


329 


Counterfeit,  132. 

Currency,  130. 

Debt,  public,  120,  151,  188,200; 
imprisoument  for,  36,  221.  See 
Legislature. 

Declaration,  81.    See  Rights. 

Deodanc,  13,  35,  221. 

Directory,  59,  157,  272,  280. 

Duels,  300. 

Economy,  43. 

Education,  69,  228,  235,  300. 

Elections,  colonial,  18,  24;  in 
period  1776-1789,  50;  vote, 
written  or  oral,  51,  236-239; 
choice  of  Federal  Representa- 
tive, 105  ;  race  distinctions,  201, 
226,  227,  242-245;  franchise 
since  1789,  231;  left  to  State 
development,  232  ;  tests,  exten- 
sion of  suffrage,  234  ;  time  and 
method  of  elections,  235,  252 ; 
sundry  disqualifications,  235, 
240 ;  plurality  rule,  minority, 
245,  269 ;  miscellaneous  pro- 
visions, 246 ;  progress  of  De- 
mocracy, 247 ;  Presidential,  159, 
161,  197;  to  Legislature,  253, 
261  ;  to  executive  office,  268, 
281 ;  of   judges,  etc.,  287,   292. 

Error,  Writs  of,  223. 

Executive,  colonial,  16;  States 
(1776-1789),  title,  method  of 
choice,  58 ;  qualifications,  pro- 
perty, religion,  60 ;  lieutenant- 
governor,  61  ;  council,  61  : 
executive  powers,  62 ;  com- 
mander-in-chief, 62  ;  veto  power, 
62  ;  pardoning,  appointing,  63  ; 
secretary,  treasurer,  etc.,  63 ; 
Federal  (1787)  a  new  creation, 
156;  President's  term,  responsi- 
bility, etc.,  157  ;  Vice-President 
and  vacancy,  158;  mode  of 
choosing  executive,  159  ;  amend- 
ment of  1803-1804,  160,  197 
qualifications  for  office,  162 
salary,  oath,  inauguration,  163 


powers  and  duties,  163;  com- 
mander-in-chief, 163;  pardon, 
veto,  164,  166  ;  in  foreign  affairs, 
164  ;  in  civil  patronage,  appoint- 
ments, 165;  power  to  call  or 
adjourn  Congress,  166;  execu- 
tion of  laws,  167  ;  States  (since 
1789),  title,  independence,  choice, 
267 ;  term  and  qualifications, 
269,  279 ;  council,  lieutenant- 
governor,  272,  273 ;  pardon,  ap- 
pointments, 275 ;  veto,  sundry 
provisions,  276,  280;  patronage, 
subordinate  officers,  278  ;  popu- 
lar control  increasing,  281. 

Exemptions,  Homestead,  etc., 
224. 

Export  Tax,  120. 

Ex  Post  Facto  Law,  149,  151. 

Extradition,  25,  73,  179. 

Faith  and  Credit,  178. 

Felony,  107,  135. 

Forfeiture,  38,  176. 

Fishery  Right,  26,  36,  225. 

Franklin  Plan,  75. 

Freeholder,  50,  55,  59,  233,  243, 
271. 

Fugitives,  25,  73,  179. 

Government, American,  Colonial 
(1607-1776) ;  provincial,  proprie- 
tary and  charter,  9 ;  study  of 
early  charters,  1 1  ;  structure  of 
colonial  government,  15;  germ 
of  popular  system,  21  ;  funda- 
mental safeguards,  allegiance, 
etc.,  22  ;  civil  rights  of  colonists, 
24 ;  intercolonial  riglits,  24  ;  reli- 
gious freedom  and  jihilaiithropy, 
25 ;  trade  and  private  occui)a- 
tions,  26  ;  gold,  silver,  etc.,  reser- 
vation, 27  ;  land  tenure,  registry, 
etc.,  28  ;  States,  29,  45,  203  ;  bills 
of  rights,  see  Rights,  29,  220; 
constitutional  features,  45,  203, 
see  Constitutions  ;  National 
Development :  early  tendencies  to 
union,  70  ;  New  England  Con- 


330 


INDEX. 


federacy,  72 ;  boards  of  coiu- 
missioners,  73 ;  congress  or 
conveution,  1754,  74  ;  Fruuklin'.s 
plau  of  uuiou,  76 ;  Stamp  Act 
Congress,  79  ;  Contijieiital  Con- 
gress, 80;  Declaration  of  Inde- 
pendence, 81  ;  States  never 
wlioll}-  sovereign,  82 ;  articles  of 
confederation,  84,  see  Coxfeij- 
ERATiON,  Articles  of;  Federal 
constitution  (1787)  and  new  plan, 
93-96 ;  analysis  of  Federal  con- 
stitution, 99  ;  municipal  govern- 
ment, 302.  See  Constitutions. 

GovEUNOR,  58,  267.  See  Execu- 
tive. 

GcARANTY,  Federal,  182. 

Habeas  Corpus,  148,  174,  223. 

Impeachment,  67,  112,  288,  296. 

Improvements,  Internal,  301. 

Indians,  26,  105,  122,  242,  243. 

Interstate  Eights,  24, 125, 178. 

Jeopardy,  193. 

Judiciary,  Colonial,  23 ;  States 
(1776-1789),  judicial  tenure  and 
choice,  64 ;  establishment  of 
courts,  66  ;  removal,  sundry  pro- 
visions, 67  ;  Federal  cslahlish- 
ment  (1787),  168,  169;  supreme 
court,  permanent,  170;  inferior 
courts,  changeable,  170;  tenure 
and  salary,  170;  jurisdiction 
under  Federal  constitution,  172  ; 
correction  of  State  tribunals, 
174;  constitutional  sanction,  174; 
criminal  jurisdiction,  135  ;  suits 
agaiu.st  States,  173,197;  State 
courts  {siuce  1789),  283;  modern 
tenure  reduced,  284;  bow  chosen, 
tests,  removal,  286 ;  popular 
influence,  long  fixed  term,  289  ; 
sundry  constitutional  provi- 
sions, 291  ;  opinions,  clerks, 
sheriffs,  etc.,  292 ;  interpreter  of 
State  constitution,  292. 

Jury,  Trial  by,  32,  33,  176,  193, 
223. 


Land,  tenure  and  registry,  27; 
homestead,  etc. .exemptions,  224 ; 
lea.ses,  etc.,  225 ;  puMic  grants, 
228,  300. 

Laav,  Fundamental,  constitution, 
statute,  1;  common  or  cu.stomary 
law,  precedents,  3  ;  constitution 
of  United  Slates,  7 ;  range  of 
institutional  study,  7. 

Law  of  Land,  188. 

Legislature,  Colonial,  17;  States 
(1776-1789),  one  or  two  cham- 
bers, 51  ;  qualifications  of  mem- 
bers, 55  ;  sessions,  fundamental 
rules,  56 ;  method  of  passing 
bills,  57;  Continental  and  Federal, 
see  Congress  ;  Stales  (since 
1789), choosing  Federal  senators, 
108;  general  pattern,  two  cham- 
bers, 249  ;  style,  basis  of  appor- 
tionment, 250,  261  ;  sessions, 
qualifications,  early  con.straints, 
253  ;  method  of  enactment,  256  ; 
punishments,  fundamental  rules, 
257;  later  checks  ujjou  legisla- 
tion, 258-261  ;  biennial  legisla- 
tures and  sessions,  261  ;  latest 
provisions,  264. 

Libel,  222. 

Lieutenant-Governor,  61,  223, 
273.     See  Executive. 

Lottery,  192,  300. 

JIarque,  Letters  of,  136,  151. 

Militia,  33,  144,  191,  247. 

Ministers,  public,  164,  173;  of 
the  gospel,  44,  55,  68,  297. 

Money,  bills  for  raising,  56,  111, 
256 ;  federal  coinage  ami  stand- 
ard, 129;  bills  of  credit,  130; 
national  bank,  etc.,  131  ;  coun- 
terfeiting, 132. 

Montesquieu,  45,  46,  87, 103,  221. 

Municipal  Govern.ment,  302. 

Naturalization.  See  Citizen- 
ship. 

Navy,  142,  16.5,  193. 

Negro.  See  Elections,  Slavery. 


INDEX. 


331 


Nobility,  Title  of,  .18,  150. 

Oaths,  68,  163,  188. 

Office,  37,  63,  68,  106,  166,  189, 
223,  229,  275,  296. 

Pardon,  63,  164,  275. 

Patents,  133. 

Pathonaoe,  see  Office. 

Petition,  Right  of,  35, 192,  221. 

Piracy,  135. 

Post-office,  132. 

Powers  and  Pkohibitions,  pow- 
ers under  Federal  constitution, 
115  ;  as  between  States  and 
United  States,  116;  to  tax, 
borrow  money  and  incur  debt, 
117  ;  to  regulate  commerce,  etc., 
121-127 ;  over  naturalization 
and  bankruptcy,  127 ;  money, 
weights,  .and  measures,  129 ;  post- 
oflices,  patents,  and  copyriglits, 
132  ;  piracies  and  felonies,  etc., 
135;  war,  marque,  peace,  136; 
army,  navy,  and  militia,  140; 
capital  and  Federal  sites,  146; 
pruliihilions  in  general,  116;  upon 
Congress,  etc. :  habeas  corpus,  at- 
tainder, ex  post  f ado,  148;  tax 
prohibitions,  etc.,  126,  150;  ap- 
propriations and  treasury,  150; 
titles  of  nobility,  presents,  etc., 

150  ;  upon  States  :  marque,  coin- 
age, bills  of  credit,  tender,  130, 
136,  151  ;  title  of  nobility,  1.50; 
attainder  and  ex  post  facto  laws, 

151  ;  treaty,  alliance,  and  con- 
federation, 151  ;  impairing  obli- 
gation of  contract,  152  ;  laying 
imposts,  etc.,  153  ;  compacts  with 
other  States,  1 54 ;  keeping  troops 
or  engaging  in  war,  154  ;  implied 
prohibitions,  155. 

President,  58,  137,  139, 145,  156- 

168.     See  Fi.xEciiTivi:. 
Press,  Freedom  of,  33,  222. 
Process  of  Law,  194,  199. 
Proprietary.   See  Government. 
Protection  Policy,  301. 


Provincial.  See  Government,  9. 

Qualifications,  of  voter,  51,  232- 
234  ;  of  legislator,  55,  253  ;  of 
executive,  61,  271  ;  of  judges, 
64,  170,  285;  of  member  of  Con- 
gress, 106  ;  of  federal  executive, 
162  ;  of  sundry  ofiicers,  68,  189, 
213 ;  geographical  residence, 
297.     See  Office. 

Railways,  122. 

Referendum,  47,  213,  216,  219, 
245,  303. 

Registry  and  Record,  28,  178, 
235,  239. 

Religion,  13,  25,  43,  189,  192, 
229,  230. 

Representatives.  See  Con- 
gress, Legislature. 

Reservation,  Public,  27,  196, 
301. 

Rights,  Bills  of,  definition,  29 ; 
Virginia  in  1776,  31  ;  Pennsyl- 
vania in  1776,  34  ;  Maryland  in 
1776,  36  ;  others  in  revolution, 
38  ;  amendment  to  Federal  con- 
stitution, 191  ;  reserved  to  State 
or  people,  196;  State  maxims 
since  1789,  220-230. 

Salary.     Sec  Compensation. 

Search  Warrants,  33,  193. 

Sedition,  192. 

Senate.  See  Congress,  Legisla- 
ture. 

Slavery,  40,  105,  148,  179,  187, 
197,  227. 

States,  names  and  number,  etc. 
46,  204,  305, .see  Constitutions; 
incomplete  sovereignty,  82,  92, 
96  ;  suits  against,  173,  197. 

Statute,  1. 

Suicide,  13,  35,  221. 

Taxation,  colonial,  17,  80;  in 
States,  57,  2C0 ;  Federal  power 
and  method,  119;  as  to  inter- 
state commerce,  125;  sundry 
prohibitions,  150. 

Tender,  Legal,  130,  131,  151. 


332 


INDEX. 


Terkitohies,  13,  180. 

Tests.     See  Qualifications. 

Treason,  176. 

Treasury,  150. 

Treaty,  164,  188. 

Union.     See  Government. 


Veto,  62,  111,  277. 

Voter.     See  Elections. 

Wau,  136-144,  154. 

Weights  and  Measures,  129. 

Witness,  193,  224,  230. 

Wo.man,  Kigiits  of,  224,226,  246. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    001  001  686    3 


